Skip navigation

University of Denver Sturm College of Law, Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals, 2020

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
UNIVERSITY01

" ' DENVER
STURM COLLEGE OF LAW

University of Denver Sturm College of Law
Legal Research Paper Series
Working Paper No. 21-23

Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the
Lives of Incarcerated Individuals

Nicole B. Godfrey

University of Denver Sturm College of Law

This paper can be downloaded without charge from the Social Science Research Network
Electronic Paper Collection
Electronic copy available at: https://ssrn.com/abstract=3920518

Creating Cautionary Tales: Institutional, Judicial, and Societal
Indifference to the Lives of Incarcerated Individuals
Nicole B. Godfrey *
ABSTRACT
As the COVID-19 pandemic wreaked havoc on American
society in the spring of 2020, advocates for incarcerated people
began sounding alarm bells alerting society to the impending
devastation for incarcerated people once the coronavirus scaled the
prison walls. For too many incarcerated people, the alarms fell on
deaf ears and the COVID-19 pandemic has had life-shattering
consequences for thousands of individuals locked inside American
prisons. But to anyone with an understanding of the historical
realities of and legal parameters around the American carceral
state, the devastation came as no surprise.
Since the 1980s, America has led the world in imprisoning
its own citizens, and, to many, American justice means locking
human beings in overcrowded cages and throwing away the key.
This Article explores how American criminal “justice” has created
a system wherein three interconnected strands of indifference
render incarcerated people particularly vulnerable to devastating
harms like those associated with the COVID-19 pandemic. First, the
sheer enormity of the American carceral state has led to the creation
of prison bureaucracies that operate with institutional indifference
to the lives of the incarcerated. Sympathetic to the complex task of
administering enormous prison systems, the federal judiciary has
Visiting Assistant Professor, University of Denver Sturm College of Law.
Special thanks to Rebecca Aviel, John Bliss, Bernard Chao, Alan Chen, Ian
Farrell, César Cuauhtémoc García Hernández, Sam Kamin, Tamara Kuennen,
Margaret Kwoka, Kevin Lynch, Viva Moffatt, Govind Persad, and Laura Rovner
for their insight on a very early version of this Article. I also want to thank
Benjamin Barton, Mira Edmonds, Fanna Gamal, Randy Hertz, Zina Makar, and
Maneka Sinha for their feedback on an earlier draft of this piece presented at the
2020 Clinical Law Review Writers’ Workshop. Finally, I want to thank Sara
Hildebrand, Tamara Kuennen, Jesse Loper, Sarah Matsumoto, and Tania N.
Valdez for their thoughtful feedback and encouragement as this piece moved into
its final form. All errors are my own.

*

Electronic copy available at: https://ssrn.com/abstract=3920518

created a doctrine of judicial indifference to harms experienced to
incarcerated people. Finally, the Article explores how a general
societal indifference to the lives of incarcerated individuals in
particular and marginalized groups in general has allowed the
institutional and judicial indifference to develop and proliferate.
The Article posits that the damaging consequences of the COVID19 pandemic on the incarcerated population are directly tied to
these interwoven indifferences and calls on widespread reform and
decarceration to avoid future cautionary tales.
TABLE OF CONTENTS
INTRODUCTION
I. INSTITUTIONAL INDIFFERENCE: THE BUREAUCRATIC PRISON
STATE
A. Incarceration Nation
B. The Prison Bureaucracy
C. Stripping Incarcerated People of Identity
II. JUDICIAL INDIFFERENCE: JUDICIAL DEFERENCE AND THE
PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENTS
A. Ignoring Incarceration as Punishment
B. Deference to Prison Officials
III. SOCIETAL INDIFFERENCE: OUT OF SIGHT, OUT OF MIND
CONCLUSION
INTRODUCTION
It has long been said that a society’s worth can be judged by
taking stock of its prisons. That is all the truer in this pandemic,
where inmates everywhere have been rendered vulnerable and
often powerless to protect themselves from harm. May we hope
that our country’s facilities serve as models rather than cautionary
tales. 1
Justice Sonia Sotomayor, joined by Justice Ruth Bader
Ginsberg, issued the above-quoted clarion call to protect the lives of
Valentine v. Collier, 140 S.Ct. 1598, 1601 (2020) (Sotomayor, J., statement
respecting the denial of application to vacate stay).

1

2
Electronic copy available at: https://ssrn.com/abstract=3920518

incarcerated people on May 14, 2020. 2 At that point, the COVID-19
pandemic had brought American society to a standstill for a little
more than two months, and it had begun to wreak havoc on
American prisons nationwide. 3 Despite Justice Sotomayor’s hopes
that the nation’s prisons might avoid becoming cautionary tales, the
realities of and legal doctrines governing the American system of
mass incarceration all-but-insured that American prisons would
become a site of mass casualty to the COVID-19 pandemic. This
Article explains why.
Let’s start by looking at how the pandemic impacted one
prison—Arkansas’s Cummins Unit—among the nation’s
approximately 2,000. 4 Established in 1902, the Cummins Unit is an
Arkansas prison that sits on nearly 18,000 acres of farmland that
used to be a cotton plantation. 5 Built to incarcerate 1,876 men, the
prison confines 1,950 today. 6 The men incarcerated at Cummins
work in all manner of prison jobs; some work the fields in a manner
all-too reminiscent of the slaves who worked the plantation during
the antebellum era. 7 More than one-hundred men living in the
2

See generally id.
Greg Stohr, Supreme Court Rejects Texas Inmates on Covid-19 Prevention,
LAW
(May
14,
2020),
available
at
BLOOMBERG
https://news.bloomberglaw.com/us-law-week/supreme-court-rejects-texasinmates-on-covid-19-prevention-steps (noting that more than 20,000 incarcerated
people had been infected and more than 300 had died at that point in the
pandemic).
4
HOMER VENTERS, LIFE AND DEATH IN RIKERS ISLAND 9 (2019) (noting that
“[t]here are currently about 3,000 jails and 2,000 prisons in the United States).
5
Molly Minta, Incarcerated, Infected, and Ignored: Inside an Arkansas Prison
NATION
(June
17,
2020),
Outbreak,
THE
https://www.thenation.com/article/society/cummins-prison-arkansascoronavirus/. Like many states in the south, Arkansas used the postReconstruction era to repurpose its antebellum-era slave plantations into prisons
that would set the stage for the continued subjugation of Black people. See, e.g.,
CALEB SMITH, THE PRISON & THE AMERICAN IMAGINATION 136 (2009) (“In the
aftermath of Reconstruction and the Civil War amendments, Southern states
dismantled the old structure and recomposed its elements into a kind of hybrid,
the “prison farm,” at sites like Angola, Cummins, and Parchman.”).
6
Minta, supra note 2.
7
See Rachel Aviv, Punishment by Pandemic, THE NEW YORKER (June 15, 2020),
https://www.newyorker.com/magazine/2020/06/22/punishment-bypandemic?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_061720
&utm_campaign=aud3

3
Electronic copy available at: https://ssrn.com/abstract=3920518

Cummins Unit go to work each day as part of what is known as the
“Hoe Squad.” 8 Unpaid, these men “pile into an open trailer” each
morning, sitting side-by-side, “shoulder to shoulder, hip to hip” as
“a tractor pulls them deep into the prison’s fields” where they “pull
weeds, dig ditches, and pick cotton, cucumbers, and watermelons.” 9
When one man asked an officer why the men working the fields had
to use “gardening tools rather than modern farming technology,” the
prison official told him, “We don’t want your brain. We want your
back.” 10 After returning from the fields or other warehouse jobs, the
incarcerated men live in open barracks, with beds that are about
three feet apart. 11 Prison officials send them to the chow hall “three
to four barracks’ worth of men” at a time. 12 In short, the men living
in the Cummins Unit are forced to live and work in extremely close
quarters—an environment ripe to incubate any highly infectious
disease like COVID-19. 13
By early-to-mid March, prison officials knew that, before
long, the coronavirus would enter the Cummins Unit, wreaking
dev&utm_medium=email&bxid=5bea00133f92a404693b30df&cndid=2458938
2&hasha=ae98c54650a6d318d4b1b23bef2c2c47&hashb=84d7a5f6a55815e28f9
3e45db8f640d5da1ef844&hashc=f28ed463f5d76f991ea2ad4b215da6b49b8610c
11fbe8af108bd9baea9b53df6&esrc=AUTO_PRINT&utm_term=TNY_Daily
(describing the unpaid labor of the “Hoe Squad” and the patrol provided by the
“field riders”). While today, the “field riders” patrol is made up of “officers on
horseback,” id., Arkansas ran its prisons using a “trusty” system until well into
the 1960s. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN
HISTORY 313 (1993). The “trusty” system allowed Arkansas to inexpensively run
its prisons by granting power to certain “favorite” incarcerated people who would
be charged with overseeing the rest of the incarcerated population. Id. (“In
Cummins prison, in Arkansas, for example, there were ‘only 35 free world
employees’ for ‘slightly less than 1,000 men.’ This was a cheap way to run a
prison, but hardly enlightened penology.”) (internal quotations omitted).
8
Aviv, supra note 4.
9
Id.
10
Id.
11
See Minta, supra note 2 (describing how one prisoner, who is 5’9”, is able to
touch the beds next to him when laying on his back and extending his arms
outward).
12
Id.
13
Martin Kaste, Prisons and Jails Worry About Becoming Coronavirus
(Mar.
13,
2020),
available
at
‘Incubators’,
NPR
https://www.npr.org/2020/03/13/815002735/prisons-and-jails-worry-aboutbecoming-coronavirus-incubators.

4
Electronic copy available at: https://ssrn.com/abstract=3920518

havoc on the incarcerated population, yet still insisted that the Hoe
Squad report to work in the crowded trailer without any safety
precautions. 14 As the men living in Cummins Unit learned of the
COVID-19 pandemic and its risks in late March, some refused to
report to work. 15 In response, the prison disciplined them, 16 even
though by the time of the work strike, “Asa Hutchinson, the
governor of Arkansas, had asked that businesses cease ‘nonessential
functions.’” 17 Meanwhile, in seeming recognition of the coming
impact of the pandemic on the prison, the director of Arkansas’s
prisons instructed the facility wardens to “prepare a portion/area of
your punitive isolation areas to house inmates effected by the
CoronaVirus,” 18 and the incarcerated people required to work in
Cummins’s garment factory began to “manufacture masks that
would be distributed throughout the state’s prison system.” 19
This contradictory behavior on the part of prison officials
continued even after the first Cummins staff member tested positive
for the virus on April 1. 20 Despite the positive test, prison officials
did not administer mass tests to Cummins’s incarcerated population,
nor did they track “which or how many of its employees tested
positive.” 21 Even when prisoners began exhibiting symptoms of
COVID-19, the prison failed to take steps to limit an outbreak. 22
Instead, prison officials ignored the complaints of symptomatic
By late March, the Centers for Disease Control (CDC) issued interim guidance
meant to assist prison officials seeking to protect the health and safety of
incarcerated persons, prison staff, and the general public. See generally Centers
for Disease Control and Prevention, Interim Guidance on Management of
Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
(Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
That interim guidance included a direction that everyone, including incarcerated
people, should be wearing masks in correctional facilities. Id.
15
Aviv, supra note 4 (describing how the group of men assigned to the “Hoe
Squad” lay down on their beds when officers called their names for work).
16
Id. (recounting that the “men were disciplined for ‘unexcused absence’—a
violation that carries a punishment of up to fifteen days in isolation”).
17
Id.
18
Id.
19
Minta, supra note 2.
20
Id.
21
Id.
22
Id.
14

5
Electronic copy available at: https://ssrn.com/abstract=3920518

prisoners, all but guaranteeing the rapid spread of the virus among
the incarcerated population. 23 For example, on April 10, a man
incarcerated at Cummins “went to the infirmary with a severe
headache and other symptoms he feared were signs of Covid-19.”24
After informing prison officials that he had a “real bad case of
diarrhea” and had lost his senses of smell and taste, prison officials
gave him two Tylenol and sent him back to his crowded barracks. 25
Four days later, as the number of symptomatic prisoners
increased, Arkansas prison officials finally began mass testing at
Cummins.26 But even in the face of mass testing, prison officials
ignored public health guidance on necessary safety precautions to
limit the spread. For example, in one barracks, four nurses
administered forty-six tests without changing their gloves.27
Unsurprisingly, then, by April 25, 2020, eight hundred and twentysix incarcerated men and thirty-three staff members tested positive
for the virus. 28
But prison officials did not inform all prisoners of their
positive result right away or take steps to quarantine infected people.
One person reported that after mass testing in his barracks, “a
sergeant later shouted into the barracks, ‘Y’all are negative.’” 29 This
person, who noticed he could not smell anything when another man
“defecated a few feet away from him,” remained skeptical and asked
a family member to call the prison to find out the true results of his
test. 30 He was positive. 31
Despite the mass outbreak at Cummins, incarcerated people,
former staff members, and current staff members reported a
shocking level of indifference to the health of those infected. Former
staff members confirmed a practice of shredding sick call requests
rather than responding to them, 32 and current staff members reported
23

Id.
Id.
25
Id.
26
Id.
27
Aviv, supra note 54.
28
Aviv, supra note 64.
29
Id.
30
Id.
31
Id.
32
Id.
24

6
Electronic copy available at: https://ssrn.com/abstract=3920518

seeing prison grievances in bathroom trash cans. 33 One former nurse
of the Arkansas prison system confirmed: “The mentality of the
infirmary is: these individuals are worthless.” 34 One incarcerated
person, twenty-nine-year-old Derick Coley, saw a nurse at Cummins
on April 15; the nurse “noted that he was too weak to walk and his
blood-oxygen level was ninety, which would typically indicate that
a patient should be hospitalized.” 35 Rather than send Mr. Coley to
the hospital, the nurse sent him “to the Hole, where he remained for
seventeen days. His vitals were never recorded again.” 36 The men
confined next to Mr. Coley in the segregation unit begged staff to
take him to the infirmary because he couldn’t breathe, but staff
members just kept walking by his cell, ignoring him. 37 When
officers finally came to his cell—“not to check on him but to clear
it so that someone else could move in”—Mr. Coley collapsed. 38
Prison officials handcuffed him, placed him in a wheelchair, and
took him to the infirmary, where he “was ‘worked on and then
passed away,’” according to the coroner’s report. 39 At the time of
his death, the prison had no doctor on duty, so the infirmary staff
called the doctor on call, William Patrick Scott, whose “medical
license has been suspended three times.” 40
Unfortunately, Mr. Coley’s story is neither unique to him, to
the Cummins Unit, or to the Arkansas prison system. By May 3,
2020, just one month after the first Cummins staff member tested
positive for COVID-19, four incarcerated people had died of
Id. A grievance is a formal complaint lodged by an incarcerated person related
to conditions within a carceral facility. An incarcerated person is required by the
Prison Litigation Reform Act to exhaust administrative remedies prior to filing
suit in federal court. See Jones v. Bock, 549 U.S. 199, 211 (2007). Exhaustion
generally requires the filing of a grievance using the prison system’s requirements
and following the prison system’s procedures through to completion. Woodford
v. Ngo, 548 U.S. 81, 88 (2006) (cautioning that incarcerated people “must
complete the administrative review process in accordance with the applicable
procedural rules” in order to properly exhaust).
34
Id.
35
Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
33

7
Electronic copy available at: https://ssrn.com/abstract=3920518

COVID-19 complications and nearly half of the incarcerated
population tested positive for the disease. 41 By June 9, 2020, just a
month later, eleven people had died in the Cummins Unit alone, 42
and by September 2020, 39 people had died throughout the
Arkansas prison system. 43 To date, 11,425 people incarcerated in
Arkansas prisons have contracted COVID-19, and 52 people have
died. 44 Across the country, 398,627 people incarcerated in
American prisons have contracted COVID-19, and 2,715 people
have died. 45
Prisons across the country have faced outbreaks like the
outbreak at Cummins. At the Marion Correctional Institution in
Ohio, more than 80 percent of the incarcerated population tested
positive for COVID-19. 46 In Wisconsin, nearly 8 percent of the
incarcerated population—more than 6,700 people—in the
Wisconsin Department of Corrections contracted COVID-19 by
November 2020. 47 By February 2021, that number had risen to
4 Cummins Unit inmates die due to COVID-19, 4029 NEWS (May 3, 2020),
available at https://www.4029tv.com/article/2-cummins-unit-inmates-die-due-tocovid-19/32353084 (noting the deaths of four incarcerated people at Cummins);
see also Frazier v. Kelley, 460 F.Supp.3d 799, 811 (E.D. Ark. 2020) (finding that
856 people (of the 1,950, see supra at 2) in Cummins contracted COVID by April
27, 2020).
42
Anna Stitt, COVID-19 Inside Arkansas Prisons: The Death of Derick Coley,
KUAR (June 9, 2020), available at https://www.ualrpublicradio.org/post/covid19-inside-arkansas-prisons-death-derick-coley.
43
John Moritz, Virus deaths at 39 in state’s prisons; 11 inmates were eligible for
parole, ARKANSAS DEMOCRAT GAZETTE (Sept. 8, 2020), available at
https://www.arkansasonline.com/news/2020/sep/08/virus-deaths-at-39-in-statesprisons/.
44
The Marshall Project, A State-by-State Look at Coronavirus in Prisons, THE
MARSHALL PROJECT (Last Updated 4:50 P.M. on Jul. 1, 2021), available at
https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-atcoronavirus-in-prisons.
45
Id.
46
Jenny E. Carroll, Pretrial Detention in the Time of Covid-19, 115
NORTHWESTERN UNIV. L. REV. 59, 62-63 (2020) (noting that health experts
warned “that the contagion ha[d] begun to spread to the communities surrounding
the prison where guards and other staff live”).
47
Rich Kremer, More Than 8 Percent of State’s Prison Population Currently
Infected with COVID-19, WISCONSIN PUBLIC RADIO (Nov. 6, 2020), available at
https://www.wpr.org/more-8-percent-states-prison-population-currentlyinfected-covid-19.
41

8
Electronic copy available at: https://ssrn.com/abstract=3920518

10,831 people (3 in 7) in Wisconsin’s prisons, a rate 4.4 times
greater than the rate in Wisconsin overall. 48 In all, the COVID-19
case rate for incarcerated people reached 5.5 times higher than the
national case rate in the United States by June 2020. 49 Incarcerated
people have faced a mortality rate that is 45% higher than the overall
rate. 50
In addition to the illness and death that accompanies an
outbreak, conditions in the prisons that are experiencing an outbreak
are often abysmal. For example, at Sterling Correctional Facility in
Colorado, outbreaks have been accompanied by extensive
lockdowns, during which incarcerated people are locked down in
their cells without access to showers or the bathroom. 51 At times,
these lockdowns last 72-hours without access to a shower and with
limited meals. 52 Colorado is not alone in utilizing lockdowns as a
tool to manage the pandemic in its prisons. 53 Moreover, in those
facilities facing rampant infection rates, incarcerated people who
fall ill are not receiving the care necessary to adequately treat
COVID-19 and its attendant comorbidities. 54 In short, American
The Marshall Project, supra note 41. For comparison, the infection rate for the
incarcerated population in Arkansas is 6.1 times the rate in Arkansas overall,
while the rate in Ohio’s prisons is 2.4 times the overall rate for the state. Id.
49
Brendan Saloner, Kalind Parish, Julie A. Ward, et. al., Research Letter, COVID19 Cases and Deaths in Federal and State Prisons, JAMA NETWORK (July 8,
2020), available at https://jamanetwork.com/journals/jama/fullarticle/2768249.
50
Moe Clark, Vaccination rates in Colorado prisons remain low as COVID-19
cases spike across the state, COLORADO NEWSLINE (Aug. 3, 2021), available at
https://coloradonewsline.com/2021/08/03/vaccination-rates-in-colorado-prisonsremain-low-as-covid-19-cases-spike-across-the-state/.
51
Moe Clark, ‘It was just chaos’: Former Sterling prison guard says COVID
protocols were not enforced, COLORADO NEWSLINE (Nov. 12, 2020), available at
https://coloradonewsline.com/2020/11/12/sterling-correctional-facility-covidprotocols-ignorned/.
52
Id.
53
See Nicole B. Godfrey & Laura L. Rovner, COVID-19 in American Prisons:
Solitary Confinement is Not the Solution, 2 ARIZ. ST. L.J. ONLINE 127, 135-36
(2020) (noting that prison systems are turning to solitary confinement to address
the harms posed by the COVID-19 pandemic).
54
Carlos Franco-Paredes, Michael Aaron Vrolijk, & Eniola Oquindipe,
Imprisoned on the COVID-19 Death Row, BMJ BLOGS (Nov. 2, 2020), available
https://blogs.bmj.com/medical-humanities/2020/11/02/imprisoned-on-theat
covid-19-death-row/ (once incarcerated people become ill, “they are unable to
receive adequate and timely medical care”).
48

9
Electronic copy available at: https://ssrn.com/abstract=3920518

prisons have become cautionary tales in both their lack of
preparation and their response to the pandemic, at a cost of
thousands of lives and the untold suffering of hundreds of
thousands.
This Article posits that American prisons were doomed to be
cautionary tales from the start of the pandemic due to three
interwoven strands of indifference faced by incarcerated people in
this country. First, the sheer enormity of the American carceral
state 55 has led to an institutional indifference to the lives
incarcerated individuals. American prisons are crowded,
unhygienic, and violent. 56 Prison officials focus their energy on
security and control rather than rehabilitation and health. 57 While
the past half century has seen a rapid expansion in incarceration, 58
prison systems have done little to account for “the many ways in
which incarcerated people face new risks of injury, sickness, and
death behind bars. The deaths, injuries, sickness, and trauma caused
VENTERS, supra note 4 at 9 (noting that “[t]here are currently about 3,000 jails
and 2,000 prisons in the United States).
56
See, e.g., Carroll, supra note 43 at 73 (noting that “prisons are infamous for
overcrowding”); Andrew D. Leipold, Is Mass Incarceration Inevitable?, 56 AM.
CRIM. L. REV. 1579, 1580 (2019) (noting the overcrowding inherent to the
American prison system); Amanda Klonsky, An Epicenter of the Pandemic Will
Be Jails and Prisons, if Inaction Continues, N.Y. TIMES (Mar. 16, 2020),
https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails.html
(explaining that toilet tanks double as sinks “for hand washing, tooth brushing and
other hygiene”).
57
VENTERS, supra note 4 at 6 (warning that “[h]ealth care is not a top priority in
prison” because “health systems in jail and prison are usually designed and
controlled by people who aren’t health experts”); see also id. at 2 (noting that
prisons and jails “are paramilitary settings, where the group that has the health
data is usually under the control of the security service”).
58
Leipold, supra note 14 at 1580 (recounting the “familiar” story of the U.S.
incarceration rate:
The United States incarcerates more people than anyone else in the
world, both in absolute terms and per capita. The United States has less
than 5% of the world’s population but 20% of the world’s prison inmates.
There are 2.1 million people behind bars in this country, which is almost
one in every 100 adults. Many prisons are overcrowded, at times
unconstitutionally so. Given these facts, it is not surprising that the
phrase “mass incarceration” is routinely used to describe the American
approach to crime and punishment.)
55

10
Electronic copy available at: https://ssrn.com/abstract=3920518

by incarceration” are wholly ignored. 59 The COVID-19 pandemic
has brought this institutional indifference to the fore and highlighted
the myriad ways prisons as institutions ignore the plight of the
incarcerated.
Second, the muddled Eighth Amendment doctrine applied to
claims challenging prison conditions 60 is the result of overwhelming
judicial indifference to the lives of the incarcerated. This judicial
indifference arises in part from the overwhelming deference the
judiciary affords to prison officials 61 and in part from a misdirected
focus on punishment—and a concomitant focus on intent—in cases
challenging prison conditions. 62 By examining the series of cases in
VENTERS, supra note 4 at 3.
Nicole B. Godfrey, Institutional Indifference, 98 OR. L. REV. 151, 153 (2020).
61
Godfrey & Rovner, supra note 49 at 140-43.
62
Id. at 137-40. Incarcerated people seeking to enjoin ongoing harms posed by
prison conditions must meet an exacting, two-part test colloquially known as the
deliberate indifference standard. Farmer v. Brennan, 511 U.S. 825, 835 (1994).
First, the prisoner must demonstrate that the condition being challenged is
“sufficiently serious” in order to satisfy the objective prong of the Eighth
Amendment inquiry. Id. A sufficiently serious condition is a condition that results
in the deprivation of basic human needs, Rhodes v. Chapman, 452 U.S. 337, 347
(1981), like “food, clothing, shelter, medical care, and reasonable safety.”
DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 199-200
(1989) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). Incarcerated
people need not wait for harm to befall them before seeking judicial relief from
unsafe prison conditions—the Supreme Court has made clear that the Eighth
Amendment protects against the risk of future harms. Helling v. McKinney, 509
U.S. 25, 33 (1993). Second, in order to satisfy the subjective prong of the Eighth
Amendment inquiry, an incarcerated person must prove that the person or entity
being sued exhibited deliberate indifference to the serious condition being
challenged. Farmer, 511 U.S. at 834. In other words, an incarcerated plaintiff
must prove that the defendant being sued knew of the risk posed by the challenged
condition but disregarded that knowledge by failing to take reasonable measures
to abate the risk. Id. at 897.
In prior work, I have argued that application of this standard is nearly
impossible in cases seeking injunctive relief. Godfrey, supra note 59 at 153. In
particular, I argued that the type of proof necessary to demonstrate deliberate
indifference of an entity is unclear, and I proposed the courts look to certain
categories of proof to demonstrate the entity’s knowledge of the risks posed by a
challenged condition. Id. at 186-95. Here, I seek to build upon this prior work by
examining how the federal courts arrived at the deliberate indifference standard
for prison conditions claims. In so examining, I demonstrate that the standard
grew out of an undue focus on the word “punishments” in the Eighth
59
60

11
Electronic copy available at: https://ssrn.com/abstract=3920518

which the Supreme Court developed the modern Eighth Amendment
doctrine that is applied in prison conditions cases, I demonstrate that
the doctrine developed from an undue judicial concern in protecting
prison officials at the expense of incarcerated lives. The net result of
this undue protection of prison officials is that courts are willing to
leave horrific prison conditions undisturbed so as to avoid prison
officials’ liability. 63
Finally, the reason that the institutional and judicial
indifference described above have been allowed to proliferate is a
general societal indifference to the lives of the incarcerated. In part,
this indifference is just a continuation of the societal indifference to
the poor and minorities, traditionally disfavored groups who are
disproportionately entangled in the American criminal system. 64 But
societal indifference to the incarcerated also stems from a general
attitude that prison should be harsh so incarcerated people must
deserve the cruelty they experience in American prison systems.65
Amendment’s cruel and unusual punishments clause. By focusing too much on
the word “punishment,” the Court ignored the reality that incarceration is the
punishment at issue in conditions case. The only true question before the Court in
a conditions case is whether the conditions at issue in a particular prison are such
that incarceration has become an unconstitutional punishment. See Part II., infra.
63
See Part II., infra.
64
Leipold, supra note 14 at 1582 (noting that “high levels of imprisonment
disproportionately affect the poor and minorities” and positing that “criminal
justice policies . . . are created and enforced because they have this effect—
imprisonment as a form of social control of disfavored groups”); see also James
E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm Change, and
the Supreme Court, 34 HOUS. L. REV. 1003, 1063 (1997) (hypothesizing that the
“warehouse prison” reflects a “paradigm shift” that “changed the target of
punishment from the body of the offender to his personhood. By subjecting
inmates to coerced and regimented idleness, the warehouse prison signifies that
offenders are unworthy of activities imparting social value and self-esteem”).
65
Leipold, supra note 14 at 1585 (noting that
[p]rison is harsh, but we have taken most of the other punishment options
(shaming, banishment, corporal) off the table, leaving the remaining
choices as either being inapplicable in many cases (economic sanctions,
restorative measures), too expensive (intensive rehabilitation), or not
sufficiently harsh to satisfy retributive or deterrence goals (community
supervision, home confinement, community service)
and that “many believe that the harshness of incarceration is a feature rather than
a flaw—the worse the prison conditions, the greater the incentive for people to
avoid the underlying behavior”).

12
Electronic copy available at: https://ssrn.com/abstract=3920518

Compounding these attitudes, American prison systems are
notoriously resistant to transparency, 66 leaving the American public
with little idea of what really goes on behind prison walls. 67
This Article proceeds in three parts. First, the Article
describes the institutional indifference inherent to modern American
prison systems and how the modern, bureaucratic prison state strips
incarcerated people of their identity in an effort to maintain its
indifference. Part II provides an historical overview of the text and
purpose of the Eighth Amendment and a survey of the cases creating
the current Eighth Amendment doctrine as applied to prison
conditions. Through this survey, Part II demonstrates that current
Eighth Amendment doctrine is the result of an undue focus on the
subjective intent of prison officials rather than the harms
experienced by prisoners. This part concludes that this undue focus
arises from long-standing judicial indifference to incarcerated lives.
Finally, Part III examines how both the institutional and judicial
indifference described in Parts I and II result from a general societal
indifference to the lives of the incarcerated. The Article concludes
with a call for reform of the American carceral system to overcome
the institutional, judicial, and societal indifference discussed to
create a system that is truly just.

VENTERS, supra note 4 at 10 (noting that the resistance to transparency is the
product of both the “paramilitary nature of the setting” and the “role of litigation
in improving jail conditions”).
67
See generally Shaila Dewan, Inside America’s Black Box: A Rare Look at the
TIMES
(Mar.
30,
2019),
Violence
of
Incarceration,
N.Y.
https://www.nytimes.com/2019/03/30/us/inside-americas-black-box.html
(discussing lack of transparency in American prisons); Nicole B. Godfrey,
“Inciting a Riot”: Silent Sentinels, Group Protests, and Prisoners’ Petition and
Associational Rights, 43 SEATTLE UNIV. L. REV. 1090, 1091-92 (2020)
(discussing the importance of hearing the voices and stories of those living inside
prison walls in discussions of criminal system reform); Laura Rovner, On
Litigating Constitutional Challenges to the Federal Supermax: Improving
Conditions and Shining a Light, 95 DENV. L. REV. 457, 460-64 (2018) (discussing
the invisibility of prisons as compared to other aspects of the criminal system);
Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public Transparency
of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 462-66 (2014) (discussing
problems inherent to the lack of transparency in penal institutions).
66

13
Electronic copy available at: https://ssrn.com/abstract=3920518

I. INSTITUTIONAL INDIFFERENCE: THE BUREAUCRATIC PRISON
STATE
One of the inherent difficulties in talking about the American
prison system as an institution is that there’s not one American
carceral system. 68 Rather, each state and the federal government
operate separate systems of incarceration. 69 However, there are
some common features that permeate each of these systems, and it
is those common features that create the institutional indifference
that made American prisons ripe for disaster wen the COVID19
pandemic began.
First, many prison systems are overcrowded and have been
for decades. 70 Even those that are not operating at full or greaterthan-full capacity, are still crowded, even if not “overly” so. 71
According to the Prison Policy Initiative, “41 states are currently
operating at 75% of their capacity, with at least nine of those state
prison systems and the federal Bureau of Prisons are still operating
at more than 100%. Only one state—Maine—has a current prison
population below 50% of their capacity.” 72 Importantly, some
prison systems have changed the way they calculate their capacity
in recent years. 73 Rather than report their capacity as a measurement
of the number of prison beds anticipated in the original design of a
prison, these systems instead report capacity as a measurement of
the number of beds that “can be squeezed into a facility.” 74 But no
matter the method of measurement, one thing is certain: most

Godfrey, supra note 59 at 162-63.
Id. at 163 (discussing the expansion of the federal and state prison systems in
the late-nineteenth to early-twentieth century).
70
Emily Widra, Since you asked: Just how overcrowded were prisons before the
pandemic, and at this time of social distancing, how overcrowded are they now?,
PRISON POLICY INITIATIVE (Dec. 21, 2020) (noting that nine states’ and the federal
government’s prison systems “were operating at 100% capacity or more” before
the pandemic).
71
Id.
72
Id.
73
MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS 41 (2015).
74
Id.
68
69

14
Electronic copy available at: https://ssrn.com/abstract=3920518

American prisons have nowhere near enough space “to allow for
adequate social distancing or medical isolation and quarantine.” 75
Second, prison systems operate as paramilitary
bureaucracies where medical care, mental health care, education,
programming, and housing classifications decisions are made in a
manner that fails to account for the incarcerated person as an
individual. 76 The prison bureaucratic state allows prison systems to
ignore systemic problems by attributing tragic outcomes either to
incarcerated people themselves or “a few bad apples” among the
prison staff. 77 In the COVID-19 pandemic, the flaws in this
approach are obvious when one examines the individual stories of
the men and women who have died in prison after being infected
with the coronavirus. 78
Finally, prison systems operate to strip incarcerated people
from any sense of individualized identity by creating routinized

Widra, supra note 69.
See, e.g., VENTERS, supra note 4 at 20 (noting how the “paramilitary nature of
health care in jails and prisons” leads prison officials to “do [their] best to link the
death [of an incarcerated person] to a personal failing by the deceased patient or
chalk it up to a few bad apples when staff abuse or neglect is clearly implicated”).
77
Id.
78
See supra, Introduction at 7-8 (discussing the death of Mr. Coley at Cummins
Unit); Mahita Gajanan, Federal Inmate Dies of Coronavirus After Giving Birth
While on Ventilator, TIME (Apr. 29, 2020, 10:52 AM EDT), available at
https://time.com/5829082/female-inmate-covid-19-birth-ventilator/ (describing
the plight of Andrea Circle Bear who died at a federal medical center in Fort
Worth, Texas after contracting the coronavirus); Jack Rodgers, Texas Geriatric
Prison Ravaged by Virus Dodges Injunction, COURTHOUSE NEWS SERVICE (Nov.
16, 2020), available at https://www.courthousenews.com/texas-geriatric-prisonravaged-by-virus-dodges-injunction/ (recounting how 19 incarcerated people died
in 116 days in the Pack Unit in Texas, including Alvin Norris, who died before
prison officials “took any proactive measures to suppress Covid-19 infections”);
Lance Benzel, Before dying of COVID-19, Sterling prison inmate deprived of
care, former resident says, THE GAZETTE (May 23, 2020), available at
https://gazette.com/news/before-dying-of-covid-19-sterling-prison-inmatedeprived-of-care-former-resident-says/article_fe7b4ffc-9bb6-11ea-af4ebf041c54b3c4.html (describing how 86-year-old David Grosse had only other
incarcerated people to care for him in his final days in the prison’s ward for
military veterans and explaining that prison officials “declined to bring him to the
clinic” because he did not have a fever, despite that he was soiling himself and
not eating).
75
76

15
Electronic copy available at: https://ssrn.com/abstract=3920518

patterns of daily life. 79 Endemic to this routinized system is a
tribalism that further solidifies the only identities that matter as
prison officials on the one hand, incarcerated people on the other. 80
This tribalism leads to an institutionalized unwillingness to identify
and reform systemic failures in order to protect the health and safety
of individual people who are incarcerated. 81
In the following three sections, this Part discusses each of
these three common features of American prisons and how those
features help create the institutionalized indifference inherent to
systems of incarceration in this country. Part I.A. discusses how
America grew to become the world leader in incarceration, locking
up more of our own citizens than any other nation in the world. Part
II.B. then examines the bureaucratic prison state and how prison
bureaucracy normalizes indifference to serious harms suffered by
the incarcerated population. Finally, Part III.C. analyzes how the
purposeful stripping of identity that occurs in American prisons
perpetuates the institutional indifference to individual lives.
A. Incarceration Nation
The United States first began to turn to incarceration as its
primary system of punishment in the decades following the
American Revolutionary War. 82 This new mode of punishment
derived from a sense that society must separate its deviants in order
to root out the causes of crime, and most states opened at least one
penitentiary in the decades leading up to the Civil War. 83 After the
Civil War, states sought to design prisons that could maximize the

Norval Morris, The Contemporary Prison: 1965-Present, in THE OXFORD
HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY
202, 202 (Norval Morris & David J. Rothman, eds., 1995) (describing modern
prisons as places of “deadening routine punctuated by bursts of fear and violence”
and places of “a relentlessly unchanging, grimly gray routine).
80
VENTERS, supra note 4 at 10 (describing prison tribalism as creating a system
wherein allegiance to a particular group supersedes the greater good, particularly
in times of conflict or friction).
81
See generally id.
82
Godfrey, supra note 59 at 160-61.
83
Id. at 161-62.
79

16
Electronic copy available at: https://ssrn.com/abstract=3920518

number of people confined while saving money on administration.84
The results of this focus on maximizing prison beds at the lowest
possible monetary cost remains visible in American prison systems
today.
By the 1930s, most states and the federal government
operated prisons known colloquially as the “Big Houses” because
of the sheer number of men confined inside the prison gates. 85 But
within a few decades, those “Big Houses” proved insufficient to
house the country’s exploding prison population.86 Between 1970
and 1980, the prison population doubled; between 1981 and 1995, it
doubled again. 87 And the population growth continued, creating the
“story [that] is now sadly familiar. The United States incarcerates
more people than anyone else in the world, both in absolute terms
and per capita.” 88 This population growth led to severe
overcrowding, leading prison officials to begin placing two or three
people into prison cells built for just one person. 89 While recent
years have begun to see a slight decrease in the prison population, 90
many prison systems remain operating at or near capacity, as
discussed above.
Edgardo Rotman, The Failure of Reform: United States, 1865-1965, in THE
OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN
SOCIETY 169, 170 (Norval Morris & David J. Rothman, eds., 1995) (explaining
that states constructing new penitentiaries were driven “by how to confine the
largest number of [people] at the lowest possible cost”).
85
Godfrey, supra note 59 at 163, citing Rotman, supra note 83 at 185 (“Big
Houses were prisons that held, on average, 2,500 men, prisons such as San
Quentin in California, Sing Sing in New York, Stateville in Illinois, and Jackson
in Michigan”).
86
Morris, supra note 78 at 211 (noting the crisis of overcrowding that followed
the population growth in American prisons).
87
Id.
88
Leipold, supra note 14 at 1580.
89
Morris, supra note 78 at 212.
90
Leipold, supra note 14 at 1580-81, 1620 (cataloguing reform efforts undertaken
by the state and federal government and the concomitant decrease in prison
population and crime rate). While overall incarceration has begun to decrease,
“[i]ncarceration of women has increased dramatically in recent decades, growing
at twice the pace of men’s incarceration.” Andrea James, Ending the
Incarceration of Women and Girls, 128 YALE L.J. FORUM 772, 775 (2019). Many
of the harms associated with this increase in incarceration fall disproportionately
on Black women and children. Id. at 775-77.
84

17
Electronic copy available at: https://ssrn.com/abstract=3920518

The harms associated with the crowded living conditions of
modern prisons are well-known. 91 Crowded conditions lead to
increased violence, and prison studies confirm that prison
overcrowding can lead to detrimental impacts for particularly
vulnerable incarcerated populations (“e.g., those in bad health or
having severe psychiatric disorders, older people”). 92 Crowded
prisons also have problems providing adequate medical care to
people behind bars. 93 Prison crowding limits the programming and
educational opportunities available to incarcerated people, 94 and it
reduces the availability of visitation for people confined behind
prison walls. 95 The decrease in programming and education often
occurs despite engorged budgets allegedly responsive to the larger
prison population. 96
Widra, supra note 69.
Id.; see also Stéphanie Baggio, Nicolas Peigné, Patrick Heller, Laurent Gétaz,
Michael Liebrenz, & Hans Wolff, Do Overcrowding and Turnover Cause
Violence in Prisons? FRONTIERS IN PSYCHIATRY (Jan. 24, 2020), available at
https://www.frontiersin.org/articles/10.3389/fpsyt.2019.01015/full.
93
Widra, supra note 69; see also Amy Miller, Overcrowding in Nebraska’s
Prisons is Causing a Medical and Mental Health Care Crisis, ACLU (Aug. 16,
2017), available at https://www.aclu.org/blog/prisoners-rights/cruel-inhumanand-degrading-conditions/overcrowding-nebraskas-prisons-causing (recounting
“inexplicable failures of the most basic medical care,” including “a man with
epilepsy who has landed in the hospital several times because he didn’t receive
seizure medication” and a rape victim who reported her rape upon entering prison,
was given a routine physical exam, but “staff somehow missed the fact she was
pregnant until she unexpectedly went into labor”).
94
Widra, supra note 69; see also United States Government Accountability Office
(GAO), Bureau of Prisons: Growing Inmate Crowding Negatively Affects
Inmates, Staff, and Infrastructure 19-21 (Sept. 2012), available at
https://www.gao.gov/assets/650/648123.pdf (recounting the decrease in
programming and educational opportunities, “resulting in waiting lists and inmate
idleness,” caused by federal prison population growth).
95
Id. at 21 (explaining that BOP facilities have “visiting space to accommodate
the number of inmates that the facility was designed to house and a visitor capacity
to enable staff to manage the visitation process. The infrastructure of the facility
may not support the increase in visitors as a result of the growth of the prison
population.”).
96
See Shon Hopwood, The Effort to Reform the Federal Criminal Justice System,
128 YALE L.J. FORUM 791, 793 (2019) (explaining that the “federal prison
population increased from 24,640 in 1980 to 185,617 in 2017” and that even
though the BOP budget “has grown, “crowding out” other Department of Justice
91
92

18
Electronic copy available at: https://ssrn.com/abstract=3920518

Thus, prison officials knew of the harms associated with the
sheer number and close proximity of people living in carceral
facilities well before the pandemic. In fact, public health officials
have known for decades that prisons made for easy “breeding
grounds for all sorts of communicable diseases.” 97 Despite this
knowledge, prison systems proved ill-equipped to handle the effects
of the COVID-19 pandemic on the incarcerated population. In
September 2020, incarcerated people were experiencing an infection
rate four times higher than the general population and a death rate
twice as high. 98 The import of these statistics, particularly on
marginalized communities, can be slightly misleading, however,
because they fail to account for three important facts: first, Black
Americans are twice as likely to die from COVID-19. 99 Second,
Black Americans “are incarcerated five times more often than white
Americans.” 100 Finally, “people in prison are more likely to be male
and younger than a non-incarcerated individual.” 101
In sum, there can be no doubt that American prisons are
“COVID-19 hotspots” 102 and that the pandemic has been
devastating to the incarcerated population, particularly Black
incarcerated men. Stuck inside overcrowded facilities, these people
had no control over whether and when they might be exposed to the
virus. Their safety remained in the hands of their captors, prison
officials who work within the prison bureaucratic state that
(DOJ) priorities, the federal prison system has still largely failed to implement
evidence-based rehabilitation programs”).
97
Widra, supra note 69; see also James Hamblin, Mass Incarceration is Making
Infectious Diseases Worse, THE ATLANTIC (July 18, 2016), available at
https://www.theatlantic.com/health/archive/2016/07/incarceration-andinfection/491321/ (noting the prevalence of infectious diseases among the
incarcerated population—“4 percent have HIV, 15 percent have hepatitis C, and
3 percent have active tuberculosis”—and pointing to the carceral system as “a
primary reason that these diseases can’t be eliminated globally”).
98
Widra, supra note 69; see also Kevin T. Schnepel, Covid-19 in U.S. State and
Federal Prisons, NATIONAL COMMISSION ON COVID-19 AND CRIMINAL JUSTICE
5,
9
(Sept.
2020),
available
at
https://cdn.ymaws.com/counciloncj.org/resource/resmgr/covid_commission/FIN
AL_Schnepel_Design.pdf.
99
Id.
100
Id.
101
Id. at 6.
102
Id. at 15.

19
Electronic copy available at: https://ssrn.com/abstract=3920518

developed in response to the exploding prison population in the
latter half of the twentieth century. The impact that prison
bureaucracy has on the lives of incarcerated people is the focus of
the next section.
B. The Prison Bureaucracy
As the incarcerated population grew, so too did the need for
people to run the prisons. 103 This prison population explosion also
transformed prison systems into modern bureaucracies, replete with
overarching “rules and regulations that bind the organization
together.” 104 Many viewed this move toward bureaucratization of
the carceral state as a good thing, and it is hard to argue that prison
should operate without written rules and regulations. 105 However,
the structures of bureaucracy can also allow individual officials to
skirt responsibility when things run amok, thereby allowing harms
to individuals subject to the bureaucratic state to go unchecked. 106
Before turning to these dangers of bureaucracy, however, it
is first important to have a basic understanding of features of
103
Malcom M. Feeley & Van Swearingen, The Prison Conditions Cases and the
Bureaucratization of American Corrections: Influences, Impacts and
Implications, 24 PACE L. REV. 433, 456 (2004) (discussing the growth of the
number of prisons and guards in the final three decades of the twentieth century).
104
Id. Civil rights litigation focused on protecting the rights of the incarcerated
also contributed to the creation of the modern, bureaucratic, penal administrative
state. Id. at 455 (explaining that different prison reform efforts “were part of a
process designed to drag pre- and under-bureaucratic (and at times, feudal)
criminal justice institutions into the modern administrative world”). See also
Godfrey, supra note 59 at 164-65 (discussing the beginning of the modern
prisoners’ rights litigation movement).
105
Feely & Swearingen, supra note 102 at 455 (quoting James B. Jacobs, The
Prisoners’ Rights Movement and Its Impacts, 1960-1980, in 2 CRIME AND JUSTICE
430, 458 (Michael Tonry et al. eds., 1980)) (noting that prison systems in the
1960s and 1970s had “no written rules and regulations” but instead used “daily
operating procedures . . . passed on from one generation to the next,” resulting in
an “ability of the administration to acts as it pleased,” ensuring “its almost total
dominance of the mates”).
106
See Dan Luban, Alan Strudler, & David Wasserman, Moral Responsibility in
the Age of Bureaucracy, 90 MICH. L. REV. 2348, 2352 (1992) (discussing the
reoccurring epistemological excuse of “I didn’t know” that comes naturally “to
those who commit wrongs in a bureaucratic setting”).

20
Electronic copy available at: https://ssrn.com/abstract=3920518

bureaucracies in general and prison bureaucracies in particular.
Malcom M. Feeley and Van Swearingen have succinctly described
Max Weber’s summary of the key elements of bureaucracy:
Compared to other forms of organization . . . modern
bureaucracy is defined by a rationalized set of rules and
regulations that bind the organization together. Every office
is arranged in a clear hierarchy of superordination and
subordination, with employees subject to a rigid and
systematic set of policies designed to maintain control and
discipline when necessary. Offices within the bureaucracy
are characterized by their fixed and definite division of
organization responsibility and are staffed by highly trained
officials who are appointed by merits, have set salaries and
pensions, secure careers, and duties that are clearly separated
from their private life. 107
Feeley and Swearingen also aptly summarize Victor Thompson’s
application of Weber’s ideas to the American administrative state
and identify several additional characteristics of the modern
American bureaucracy. 108
In total, this discussion will focus on five characteristics of
bureaucracies identified by Weber and Thompson and applicable to
the modern American carceral state. First, the American carceral
state has a clearly defined organizational structure with clear
divisions of power and responsibility.109 Every state prison system
and the Federal Bureau of Prisons have a hierarchy of prison
administration. 110 At the top of the prison hierarchy is the director
Feeley & Swearingen, supra note 102 at 456 (citing MAX WEBER,
WIRTSCHAFT UND GESELLSCHAFT 650-78, 957, 973 (Guenther Roth & Claus
Wittich eds., Ephraim Fischoff et al. trans., 1968)).
108
Feeley & Swearingen, supra note 102 at 456-57 (citing VICTOR A. THOMPSON,
MODERN ORGANIZATION 10-24 (1961)). Four of those additional characteristics
are relevant to this discussion: (1) routinization of organizational activity, (2)
classification of persons, (3) slowness to act or to change, and (4) “preoccupation
with the monistic ideal—the system of superior and subordinate relationships in
which the superior is the only source of legitimate influence upon the
subordinate.” Feeley & Swearingen, supra note 102 at 457. The other American
characteristics of bureaucracy identified by Thompson are factoring the general
goal into subgoals, formalistic impersonality, and categorization of data. Id.
109
Id. at 457.
110
Id. at 457-58. See also Morris, supra note 78 at 226.
107

21
Electronic copy available at: https://ssrn.com/abstract=3920518

of the prison system, a position usually appointed by the governor
or, in the case of the federal system, by the President. 111 The
organizational structure that each system director commands varies
slightly depending on the size and responsibility of each particular
system. 112 For example, the Federal Bureau of Prisons is organized
into separate divisions focused on subject matter as well as separate
geographical regions meant to provide oversight and support to the
prisons within that region. 113 Most state systems, in contrast, are
organized into divisions based on specific subject matter. 114
Below this broad administrative structure sitting atop the
prison system as a whole are the people responsible for running
particular prisons, usually known as wardens. 115 Wardens are
responsible for the staff members who actually work in the prisons:
the administrative, custodial, and programming staff. 116 The vast
majority of prison officials are custodial, or security, staff, but the
division between those responsible for security and those
responsible for programming or administration is largely farcical. 117
Id. at 226; see also Rotman, supra note 83 at 167 (discussing the federal prison
system’s transition from no central organizing body to a civil service system).
112
Feeley & Swearingen, supra note 102 at 457.
113
Federal Bureau of Prison, “About Our Agency,” available at
https://www.bop.gov/about/agency/organization.jsp.
114
See, e.g., “Alabama Department of Corrections Organizational Chart,”
Organization and Objectives, Administr[a]tive Regulation Number 002 (Feb. 7,
2012), available at http://www.doc.state.al.us/docs/AdminRegs/ar002.pdf;
Alaska
DOC
Organization
Charts,
available
at
https://aws.state.ak.us/OnlinePublicNotices/Notices/Attachment.aspx?id=89623;
Arizona Dep’t of Corrections Rehabilitation & Reentry, available at
https://corrections.az.gov/sites/default/files/documents/PDFs/adcrr-dir-orgcharts_091720.pdf; Arkansas Department of Corrections Organizational Chart,
available at https://doc.arkansas.gov/correction/about-us/organizationsl-chart/;
Colorado
Dep’t
of
Corrections,
available
at
https://drive.google.com/file/d/1bxKHyOXh6MXIY4GWss0GPuigci2E7baD/vi
ew.
115
Morris, supra note 78 at 226.
116
Id.
117
Id. at 226-27; see also see also Eric Katz, Federal Prison Employees Fear Staff
Shortages and Mass Reassignments as COVID-19 Cases Spike, GOVERNMENT
EXECUTIVE
(Dec.
1,
2020),
available
at
https://www.govexec.com/workforce/2020/12/federal-prison-employees-fearstaff-shortages-and-mass-reassignments-covid-19-cases-spike/170399/ (noting
the federal prison system’s practice of augmentation, whereby non-custodial staff
111

22
Electronic copy available at: https://ssrn.com/abstract=3920518

Indeed, the most important divisions within the prison itself are
those created by the prison’s top-down, hierarchical structure that is
modeled off of paramilitary organizations. 118 Accompanying this
structure is an understanding that a subordinate staff person’s only
legitimate source of direction must come from his, her, or their
superior. 119 This can create confusion in prison systems, however,
when administrative supervisors—e.g., those responsible for
running the medical or mental health programs—issue orders to
security staff related to an individual’s treatment. 120 This type of
confusion can also contribute to the tendency to pass the blame when
something goes wrong for a particular incarcerated individual in a
prison facility, discussed in more detail below. 121
The second and third characteristics of bureaucratic systems
that can be seen in the American cultural state are interrelated.
Second, the American carceral state is theoretically bound by a set
of rules and regulations. 122 Third, these rules and regulation are, in
theory, used to routinize organizational activity. 123 The reason I use
the terms “theoretically” and “in theory” to describe these two
characteristics are important. While it is true that almost every
are “augmented” to perform duties of security staff and justifying such practice
by pointing to the fact “all staff are trained as correctional officers”). Prison
officials have any overwhelming “us vs. them” mentality wherein it remains of
utmost importance that they remain separate from “the criminal element they
supervise.” Anthony Gangi, Yes, corrections officers are law enforcement
officers, CORRECTIONS1, available at https://www.corrections1.com/correctionsjobs-careers/articles/yes-corrections-officers-are-law-enforcement-officersZZ9odttfoVCthDZv/ (explaining that in the correctional officers’ view, the lack
of acceptance by the broader law enforcement community as a separation “from
their brothers/sisters in blue [that] brings them closer to the offenders in their
charge”).
118
Marvin Preston, What is “Paramilitary”?, CORRECTIONS.COM, available at
http://www.corrections.com/news/article/24159-what-is-paramilitary (describing
the established ranking system in most prison systems as including line staff
(corrections officers), supervisors (corporals and sergeants), and managers
(lieutenants, captains, and majors)).
119
See id.; see also Feeley & Swearingen, supra note 102 at 457.
120
Preston, supra note 117 (noting that “line staff” can be confused about the
necessity of following orders from non-security staff).
121
See VENTERS, supra note 4 at 10.
122
Feeley & Swearingen, supra note 102 at 459.
123
Feeley & Swearingen, supra note 102 at 464.

23
Electronic copy available at: https://ssrn.com/abstract=3920518

corrections system in the country has a codified system of rules
meant to govern the operation of the system, many systems have
found ways to “circumvent” the rules and their process by
implementing specific practices at their facilities that are unique to
the specific security and programming concerns of a particular
facility. 124 What this means, practically speaking, is that while
prison systems can often enact rules and regulations that, on their
face, are meant to protect the health and safety of individuals who
are incarcerated, those rules may not always be fully followed at the
institutional level. This problem can be compounded by the fluid
nature of who is occupying leadership positions at any given time.
Because the commissioners or directors of prison systems are
appointed positions, whomever is filing those positions is
necessarily influenced by the political whim of the current
executive. 125 This means that a reform-minded leader may struggle
to find buy-in from lower-level staff when implementing any
changes to the system, or, conversely, a reform-minded lower-level
staff may not be able to implement reforms without buy-in from the
current prison administration. 126
Fourth, the American carceral state relies upon the
classification of incarcerated individuals. 127 The federal prison
system became the first prison system to create a classification
system for incarcerated people. 128 Classification systems allow
prisons to assign people “to specific institutions, units, and cells
according to their propensity for violence, length of sentence,

Id. at 460.
Morris, supra note 78 at 227 (describing the problem inherent to the “lack of
continuity in leadership at the director level).
126
See, e.g., Michelle Theriault Boots, ‘It was Working’: The Rise (and Fall) of
an Alaska Prison Reformer, THE CRIME REPORT, available at
https://thecrimereport.org/2020/03/06/it-was-working-the-rise-and-fall-of-analaska-prison-reformer/ (detailing experience of a prison superintended in Alaska
who had backing to try an experimental re-entry unit from one prior commissioner
only to have that backing dropped upon entry of the new commissioner).
127
Feeley & Swearingen, supra note 102 at 463.
128
Rotman, supra note 83 at 167 (noting that the first director of the Federal
Bureau of Prisons implemented “a number of important improvements,”
including developing a system that “made classification far more systematic in
federal than in state facilities”).
124
125

24
Electronic copy available at: https://ssrn.com/abstract=3920518

criminal history, and the like.” 129 While in some instances
classification may afford more protection to incarcerated
individuals, 130 it has also lead to the creation of so-called “prison[s]
of last resort,” where so-called intractable people can be sent when
the prison system cannot find another place for them. 131 While these
so-called supermax prisons were meant to reduce violence in prison
systems, 132 recent studies have demonstrated that these facilities did
not reduce misconduct or violence. 133 This means that tens of
Feeley & Swearingen, supra note 102 at 464.
Id.
131
Rotman, supra note 83 at 167 (describing the Federal Bureau of Prisons’ first
last-resort prison, Alcatraz).
In 1934, Alcatraz was awarded this distinction. Its purpose was to isolate
the criminal of the “vicious and irredeemable type,” those with no hope
of rehabilitation. Prisoners for Alcatraz were selected from other federal
prisons and were transferred back to other prisons before their release.
Alcatraz inmates had virtually no privileges and little contact with the
outside world. To prevent secret messages, officials never allowed
prisoners to receive original copies of their mail, only transcribed ones.
In the early years, conversation among inmates was prohibited except
when indispensable. To compensate for these restrictions, Alcatraz had
a fairly extensive library with many classics, and its food was above the
average. Although the rest of the federal system was overcrowded,
Alcatraz maintained its original purpose as a jail for the worst of the
worst, a purpose that resulted in a surplus of beds. During the thirty years
Alcatraz was in use, it housed a total of only 1,557 prisoners, with the
highest average of daily prisoners occurring in 1937 at 302. Because of
deterioration of the physical plant, Alcatraz was closed in 1963 and was
replaced by the federal penitentiary at Marion, Illinois.
Id. at 167-68. In the early 1990s, the ADX in Florence, Colorado, replaced Marion
as the BOP’s prison of last resort. See Raymond Luc Levasseur, Trouble Coming
Every Day: ADX—The First Year 1996, in THE NEW ABOLITIONISTS:
(NEO)SLAVE NARRATIVES AND CONTEMPORARY PRISON WRITINGS 47, 50 (Joy
James, ed., 2005) (describing the construction of ADX, slated to replace Marion);
see also James E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm
Change, and the Supreme Court, 34 HOUS. L. REV. 1003, 1017 n. 92 (1997)
(describing ADX as “a ‘high tech’ concrete dungeon [that] houses inmates in cells
that prevent them from having eye contact with other inmates”) (other citations
omitted).
132
Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on
Aggregate Levels of Institutional Violence, 41 CRIMINOLOGY 1341, 1341-42
(2006).
133
B. Steiner & C.M. Cain, The Relationship Between Inmate Misconduct,
Institutional Violence, and Administrative Segregation: A Systematic Review of
129
130

25
Electronic copy available at: https://ssrn.com/abstract=3920518

thousands of individuals have languished in conditions of solitary
confinement with little penological justification. 134
Fifth, the American carceral state is slow to reform. 135
Whether through litigation or legislation, reforms to carceral
systems are usually incremental, contentious, and remain
ongoing. 136 That means that when faced with a new threat like the
COVID-19 pandemic, prison systems are slow to find ways to
respond in a way that will save lives. 137
Overall, these five characteristics of the bureaucracies of the
American carceral state all too often cause individualized harms to
the people subject to the whims of those bureaucracies—
incarcerated people—that are not readily attributable to any
individual prison officials. 138 In other words, the bureaucratic
system itself allows for the “compartmentalization, mutual
buckpassing, and deniability” necessary to allow people operating
within bureaucracies to stand idly by as real, concrete, serious harms
befall other human beings. 139 These harms can result from officials’
mechanical adherence to duty, process, or policy without regard for
“what the fulfillment of his or her duty might entail.” 140 In other
the Evidence, Restrictive Housing the U.S.: Issues, Challenges, and Future
Directions 165, 179 (2016).
134
Godfrey & Rovner, supra note 49 at 130-33 (cataloguing the harms of solitary
confinement); see also Elizabeth Bennion, Banning the Bing: Why Extreme
Solitary Confinement is Cruel and Far Too Usual Punishment, 90 IND. L.J. 74749 (2015) (discussing the overuse of solitary confinement in American prisons).
135
Feeley & Swearingen, supra note 102 at 457.
136
Id. at 465. See also Michelle Chen, The Growing Fight Against Solitary
Confinement, THE PROGRESSIVE (Jan. 13, 2020), available at
https://progressive.org/dispatches/the-growing-fight-against-solitaryconfinement-chen-200113/ (cataloguing the long fight in several statues to curb
the use of solitary confinement in the prison system).
137
Covid-19 Prisoner Releases Too Few, Too Slow, HUMAN RIGHTS WATCH
(May 27, 2020), available at https://www.hrw.org/news/2020/05/27/covid-19prisoner-releases-too-few-too-slow (criticizing prison systems worldwide from
delaying releases, thereby “contributing to preventable suffering and death”).
138
See Luban, et al., supra note 105 at 2355 (attributing lack of individual
accountability for organizational harms to the “fragmentation of knowledge and
responsibility” that occurs in bureaucratic organizations).
139
Id.
140
Id. at 2354. The paradigmatic example of the horror that can follow rigid
adherence to bureaucratic duty is, of course, Nazism: “perhaps the single most

26
Electronic copy available at: https://ssrn.com/abstract=3920518

words, the characteristics of bureaucracy inherent to American
prison systems—the clearly defined organizational structure with
specific divisions of power and responsibility and specific rules and
regulations that govern that power and responsibility—result in
situations where individual bureaucrats feel bound to follow rigid
structures and policies rather than respond to individualized
problems or harms that present themselves. 141 Thus, the harms that
befall people who are incarcerated are not always, or even usually,
attributable to rogue prison officials but rather to the failures of the
system itself.
Take, for example, the death of Mr. Coley in the Cummins
Unit in Arkansas discussed above. A series of systemic failures, not
wholly attributable to the actions of individual prison officials,
worked together to cause his death: the failure of the system to set
up protocols to protect incarcerated people from the virus’s spread,
the failure of the of the system to find ways to treat rather than
isolate people who contracted the virus, and the failure of any
number of line staff to check-on Mr. Coley in his isolation cell.
These types of systemic failures are what I call institutional
indifference: the ways in which the prison bureaucracy allows
individual prison officials to claim ignorance of the plight of
individual incarcerated people by hiding behind bureaucratic
norms. 142
salient characteristic of the Nazi crimes was their bureaucratic nature. They were
committed, not by a lawless gang of criminals, but by a regularly functioning state
bureaucracy executing official policies.” Id.
141
Cf. id. at 2359 (“The horror of Nazism are without parallel, but the bureaucratic
pattern of organizations that fragment the knowledge required for moral
decisionmaking is common to large institutions throughout contemporary
society.”).
142
Luban, et al., supra note 105 at 2352, call the ability of individual bureaucratic
officials to claim they didn’t know about the harms occurring around them the
epistemological excuse. They
argue (1) that bureaucracies function (often by design) to permit their
functionaries to truthfully plead the excuse “I didn’t know!”; (2) that
traditional accounts of moral responsibility typically recognize this
epistemological excuse; and (3) that it is therefore very difficult to find
a work able account of moral responsibility within bureaucratic
institutions.
Id.

27
Electronic copy available at: https://ssrn.com/abstract=3920518

This institutional indifference is compounded by the prison
system’s prioritization of “control and security over humanity.” 143
The precedence of security over all else is evidence in any number
of common, modern prison practices, including the prevalence of
supermax prisons, 144 the intrusive and frequent nature of body
cavity searches, 145 the ban on unions of incarcerated workers, 146 and
the wide-ranging book, speech, and communications bans that
deprive incarcerated people of participation in political discourse
and the marketplace of ideas. 147 Because most prison policies are
developed in secret, 148 are justified by vague references to
maintaining a prison’s “social order” when exposed, 149 and are

Angel E. Sanchez, In Spite of Prison, 132 HARV. L. REV. 1650, 1673 (2019)
(noting that moderate efforts to reform prisons will always fall short because they
do not address the “structural and cultural transformations” required to support
change).
144
See, e.g., Robertson, supra note 130 at 1017 n. 92.
145
See, e.g., Melvin Gutterman, Prison Objectives and Human Dignity: reaching
a Mutual Accommodation, 1992 B.Y.U. 857, 910 (1992) (doubting the veracity
that visual body cavity searches are only for security and “not also to purposefully
demoralize and humiliate the inmate.”).
146
James Tager, Literature Locked Up: How Prison Book Restriction Policies
Constitute the Nation’s Largest Book Ban 30 (2019), available at
https://pen.org/wp-content/uploads/2019/09/literature-locked-up-report9.24.19.pdf (recounting the efforts of prison officials to stymie the efforts of
incarcerated people to organize). See also Godfrey, supra note 66 at 1132-35
(describing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119
(1977)).
147
See generally Evan Bianchi & David Shapiro, Locked up, Shut up: Why Speech
in Prison Matters, 92 ST. JOHN’S L. REV. 1, 3 (2018) (describing the implications
of limiting the speech of incarcerated people in light of the most common
rationales that justify free speech—the marketplace of idea, democracy
legitimation, the checking power of free speech, and self-fulfillment). The net
effect of prison censorship policies “is that in the aggregate, people who are richer,
whiter, and not incarcerated, will enjoy greater access to the marketplace of ideas
than others. Id. at 20.
148
Tager, supra note 145 at 1 (noting the lack of “public visibility into how [prison
censorship] policies are considered, adopted, and implemented”).
149
Id. at 5.
143

28
Electronic copy available at: https://ssrn.com/abstract=3920518

largely free from judicial review, 150 “prison officials inevitably err
on the side of too little freedom.” 151
In sum, the institution’s prioritization of security over
humanity solidifies the authoritarian nature of the modern American
carceral bureaucracy. 152 When prison systems limit both the speech
that may leave a facility and the speech that may enter a facility,
they are both monopolizing the sources of public information about
prisons 153 and limiting the sources of information and knowledge
for the people inside. 154 The net effect of these types of restrictions
is to create a system of forced idleness in that prison becomes not
only a place that physically separates incarcerated people from the
outside world but also removes them from broader societal
conversations. 155 This latter removal signals to incarcerated people
that they “are unworthy of activities imparting social value and selfesteem,” 156 and leads to the last feature of institutional indifference
I want to discuss: the systematic deprivation of identity inherent to
the American carceral state.

See infra, Part II.A. (discussing judicial deference to prison officials). The
“central evil” of this lack of judicial review is the unchecked “administrative
discretion granted to the poorly trained personnel who deal directly with
prisoners.” Gutterman, supra note 144 at 900.
151
Tager, supra note 145 at 3.
152
See Erwin Chemerinksy, The Constitution in Authoritarian Institutions, 32
SUFFOLK U. L. REV. 441, 458 (1999) (noting that prisons, by their very nature, are
the “places where serious abuses of power and violations of rights are likely to
occur”).
153
Bianchi & Shapiro, supra note 146 at 22 (“Without prisoners’ speech, public
information about prisons would come primarily from prison officials themselves.
Speech in prisons is especially fragile because limited checks on officials’
behavior increase the risk of retaliation”); see also Part III.B., infra.
154
See, e.g., Sanchez, supra note 142 at 1673 (noting the importance of education
to incarcerated people and the view of prison staff that education interferes with
their “job”). To Sanchez, “college education is to the imprisoned what learning to
read and write was to the enslaved—it is central to the abolition movement.” Id.
at 1672.
155
See Robertson, supra note 130 at 1063 (noting the “paradigm shift” in
American punishment that “changed the target of punishment from the body of
the offender to his personhood”).
156
Id.
150

29
Electronic copy available at: https://ssrn.com/abstract=3920518

C. Stripping Incarcerated People of Identity
By separating people from society in self-contained minisocieties (a.k.a., prisons), the United States has already created a
whole new class of other (a.k.a., the incarcerated). In so doing,
American society has added an identity label onto the people it locks
up, but the more insidious impact of this identity label is that it is
meant to supersede all other identity labels a person may hold. 157 It
is also meant to be a stigmatic identity,158 an identity that makes the
dehumanizing features of the prison seem justified to those
responsible for maintaining the system of incarceration. 159 In the
early days of the American penitentiary system, this identity was
intricately interrelated with the legal concept of “civil death—the
legal and ritual processes that produced the figure of the prisoner as
the living dead.” 160
[C]ivil death reduced the criminal citizen to the condition of
an abject “other,” the negative image of the citizen-subject.
The citizen was free; the prisoner was bound and contained.
The citizen was a transcendent spirit or a reasoning mind;
the prisoner was an offensive body vulnerable to violence
and deprivation. The citizen belonged to the human
community; the prisoner was a monstrous exile, beyond the
pale of humanity, without a claim to legal personhood.
Divested of rights and exiled from the body politic, he was
unprotected, infinitely vulnerable and pliable. He could be
whipped or gagged, confined to solitude, deprived of food,
or subjected to whatever other torments prison officials
deemed necessary either to his correction or to the orderly
James, supra note 89 at 774 (explaining how the “criminal legal system
threatens even one’s identity as a mother”).
158
Robertson, supra note 130 at 1033 (noting that the “coerced and regimented
idleness” of the warehouse prison becomes a “‘stigma symbol,’ a sign that
represents the debased identity of the inmate population”).
159
See, e.g., PATRICK ELLIOT ALEXANDER, FROM SLAVE SHIP TO SUPERMAX:
MASS INCARCERATION, PRISONER ABUSE, AND THE NEW NEO-SLAVE NOVEL 112
(2018) (describing Mumia Abu-Jamal’s description of the “U.S. supermax
prototype as “dehumanization by design”) (emphasis in original); see also Smith,
supra note 5 at 29 (“Dehumanization, then, is no excess or exception; it is the very
premise of the American prison”).
160
Id. at 39.
157

30
Electronic copy available at: https://ssrn.com/abstract=3920518

functioning of the institution. . . .Civil death justified a
virtually unlimited exploitation and discretionary violence
against the living entombed. 161
And while the notion of civil death of the incarcerated has largely
been abandoned as courts began to recognize that people imprisoned
retained some rights, 162 the general attitude underlying the concept
continues to pervade the institutional culture and practices of many
American prison systems. 163
Thus, while the theoretical rights of the incarcerated
expanded in the final decades of the twentieth century, the
perception of the incarcerated held by institutional actors remains
largely the same—incarcerated individuals are a mere number
amidst the thousands of numbers subjected to the social control of
the state. 164 But what gets lost in the institutional bureaucracy of the
prison is the individual and his, her, or their stories and voice. 165
Id. at 39-40.
See, e.g., Bianchi & Shapiro, supra note 146 at 3 (“ . . . as Justice Marshall
wrote: “When the prison gates slam behind an inmate, he does lose his human
quality; his mind does not become closed to ideas; his intellect does not cease to
feed on a free and open interchange of opinions . . . .”) (quoting Procunier v.
Martinez, 416 U.S. 396, 428 (1974) (Marshall, J., concurring)).
163
See, e.g., Laura Rovner, “Everything Is at Stake if Norway is Sentenced. In that
Case, We Have Failed”: Solitary Confinement and the “Hard” Cases in the
United States and Norway, 1 UCLA CRIMINAL JUSTICE LAW REVIEW 1, 85 (2017)
(noting that the practice of solitary confinement “violates the sacredness of the
human person”); Philip Fornaci, Alan Pemberton, & Michael Beder, Criminal
Justice in the Courts of Law and Public Opinion, 62 HOW. L.J. 125, 139 (2018)
(commenting on how the prison system “necessarily and irrevocably leads to the
deprivation of the humanity of prisoners, guards, and the community”).
164
See Morris, supra note 78 at 203 (describing how he created the “diary of
prisoner #12345”—“the diary of a one day and one night in the life of a typical
prisoner in a typical prison adjacent to a typical industrial city”).
165
Cf. Sanchez, supra note 142 at 1653-1654 (discussing the need for scholars to
account for the person stories, narratives, and perspectives of people impacted by
prison in order to “shed light on the inhumanity that goes on inside of prison, the
social problems that lead to prison, and the humanity of those impacted by
prison”); see also Gutterman, supra note 144 at 906 (“Today, as at the beginning,
the most serious social consequence of the prison system is the disintegration of
the human personality of those committed to its confines”); Colin Kaepernick,
The Demand for Abolition, Abolition for the People, MEDIUM, available at
https://level.medium.com/the-demand-for-abolition-979c759ff6f (“The young
men there [on Rikers Island] explained the dehumanizing conditions in the prison
161
162

31
Electronic copy available at: https://ssrn.com/abstract=3920518

***
The exploding prison population of the last half-century has
led to the creation of a bureaucratic carceral state that sacrifices the
identities of the individuals incarcerated for purported institutional
security and order. By prioritizing institutional order over individual
welfare, the modern prison bureaucracy operates in a state of
institutional indifference to the lives of the people held captive
behind prison walls. In times of emergency or uncertainty, like the
COVID-19 pandemic, this indifference inevitably leads to
individual harms that are above and beyond the anticipated harms
attendant to incarceration. For people like Mr. Coley in Arkansas,
who couldn’t seem to fight through the bureaucratic maze of the
Arkansas Department of Corrections to obtain adequate protection
and medical care, such institutional indifference leads to the ultimate
harm: loss of life. It is for those harms that one might think the
judiciary should stand at the ready to halt and correct, but for reasons
discussed in the next section, the legal doctrines protecting the
incarcerated ignore those harms to protect the institutionalized
indifference of prison officials.
II. JUDICIAL INDIFFERENCE: JUDICIAL DEFERENCE AND THE
PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENTS
Despite the lack of care afforded Mr. Coley and others like
him confined to the Cummins Unit in Arkansas, a lawsuit filed by
the Arkansas American Civil Liberties Union, Disability Rights
Arkansas, and the N.A.A.C.P. Legal Defense and Education Fund
has been thus-far unsuccessful. 166 Advocates pointed to the
following facts, among others, to request that “the prison take more
precautions, including releasing some people to home
confinement”:
that range from denial of literature to physical assault. They have been
criminalized and caged, in most cases, for being redlined into economic despair.
Forever emblazoned in my memory are the words of one of the young Black me:
“You love us when no one else does.” The young brother was seeking love. He
was seeking care. He was seeking a space that valued his life.”).
166
Aviv, supra note 7 (noting that the lawsuit argued “that the Arkansas prison
system had displayed deliberate indifference to prisoners’ welfare”).

32
Electronic copy available at: https://ssrn.com/abstract=3920518

Cummins has had the tenth-largest coronavirus outbreak in
the nation—nine hundred and fifty-six people, including
sixty-five staff members, have tested positive—but the
Division of Correction has made only minimal steps to
contain it. The [incarcerated people] aren’t given access to
alcohol-based hand sanitizer, even though the medical
director of infectious diseases for the state’s Department of
Health has advocated for its use. ‘Maybe science will take
precedence now in current situation,’ he wrote, in an e-mail
to the secretary of the department. Men are still sleeping in
open barracks, less than three feet apart. 167
In response to the advocates’ request, the Arkansas attorney general
“argued that the risks to prisoners were not ‘so great that they violate
standards of decency,’ nor were they ‘ones that today’s society does
not tolerate.’” 168 United States District Court for the Eastern District
of Arkansas Judge Kristine Baker agreed, denying the request for
emergency relief and cautioning that “federal courts should
‘approach intrusion into the core activities of the state’s prison
system with caution.’” 169 Such a result is not surprising when
viewed in light of the Supreme Court’s Eighth Amendment
jurisprudence governing the constitutionality of prison conditions
and federal courts’ general policy of deference to prison officials.
The text of the Eighth Amendment is a mere sixteen words:
“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” 170 The Eighth
Amendment doctrine governing claims challenging prison
conditions derives from the last six words of the amendment: the
Cruel and Unusual Punishments Clause. 171 While federal courts
Id. (noting that “[a] spokesperson for the Department of Corrections told [the
reporter] in an e-mail that if [prisoners] in every other bed follow new instructions
to sleep with their feet in the spot typically occupied by their heads, their faces
will be ‘separated by 6 feet from the next [prisoner’s] pillow’”).
168
Id.
169
Id.
170
U.S. CONST. amend VIII.
171
Farmer, 511 U.S. at 832 (explaining that the Cruel and Unusual Punishments
Clause both places restraints and imposes duties on prison officials). The Cruel
and Unusual Punishments Clause, drawn nearly verbatim from Article Ten of the
English Bill of Rights, “became part of the American Bill of Rights in 1791.”
COLIN DAYAN, THE STORY OF CRUEL & UNUSUAL 6 (2007). While scholars
167

33
Electronic copy available at: https://ssrn.com/abstract=3920518

declined to entertain constitutional claims challenging prison
conditions for more than a century after the adoption of the Bill of
Rights,172 the Supreme Court articulated and developed the modern
doctrine in a series of cases beginning in 1976 and ending in 1994.173
Since then, lower courts have struggled to uniformly apply the
doctrine, and scholars have almost unanimously criticized it as
illogical, inconsistent, and unjust. 174 As I explain below, part of the
debate the intention of the English parliamentarians in drafting Article 10, most
scholars accept that the American Framers intend for the clause to prohibit certain
methods of punishment. See Godfrey, supra note 59 at 158-59 (discussing
scholarly debate around the intent of the drafters in both England and the United
States).
172
Godfrey, supra note 59 at 165 (describing the “hands-off” doctrine that
governed federal courts’ review of prison conditions).
173
See Estelle, 429 U.S. at 104 (holding that deliberate indifference to serious
medical needs violates the Eighth Amendment); Hutto v. Finney, 437 U.S. 678,
685 (1978) (leaving undisturbed district court’s finding that conditions in
Arkansas’ prisons violated the Eighth Amendment); Rhodes, 452 U.S. at 346
(focusing on objective effects of double-celling to determine that practice did not
violate the Eighth Amendment); Whitley v. Albers, 475 U.S. 312, 319 (1986)
(holding, in the context of an excessive force case, that “[i]t is obduracy and
wantonness, not inadvertence or error in good faith, that characterize the conduct
prohibited by the Cruel and Unusual Punishments Clause”); Wilson v. Seiter, 501
U.S. 294, 299-300 (1991) (confirming that a two-part test, consisting of objective
and subjective components, characterized every Eighth Amendment claim);
Hudson v. McMillian, 503 U.S. 1, 5 (1992) (upholding the rule that “the
unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
punishment”) (internal quotations omitted); Helling, 509 U.S. at 33 (confirming
that Eighth Amendment protects against future harm); Farmer, 511 U.S. at 841
(defining deliberate indifference as those instances where a prison official knows
of a risk of harm attendant to a prison condition but fails to take reasonable steps
to abate the risk).
174
Godfrey, supra note 59 at 186 (criticizing the application of the current
doctrine in cases seeking injunctive relief); Margo Schlanger, The Constitutional
Law of Incarceration, Reconfigured, 103 CORNELL L. REV. 357, 428 (2018)
(criticizing the Eighth Amendment doctrine’s focus on the subjective intent of
prison officials rather than the objective harms inflicted on the incarcerated); Erin
E. Braatz, The Eighth Amendment Milieu: Penal Reform in the Late Eighteenth
Century, 106 J. CRIM. L. & CRIMINOLOGY 405, 426 (2016) (criticizing Eighth
Amendment doctrine for failing to fully account for the contextual history of
punishments utilized in early America); Brittany Glidden, Necessary Suffering?:
Weighing the Government and Prisoner Interests in Determining What is Cruel
and Unusual, 49 AM. CRIM. L. REV. 1815, 1821 (2012) (criticizing the
unpredictability of application of current Eighth Amendment doctrine); Sharon

34
Electronic copy available at: https://ssrn.com/abstract=3920518

challenge with the standard is that it developed out of a judicial
refusal to acknowledge that in prison conditions cases, the
punishment at issue is incarceration itself.
A. Ignoring Incarceration as Punishment
The Supreme Court first considered how the Eighth
Amendment might apply to prison conditions claims in the 1976
case of Estelle v. Gamble. 175 Estelle, viewed by many as an
improvident grant of certiorari by the Supreme Court, 176 established
that “deliberate indifference to serious medical needs constitutes
‘the unnecessary and wanton infliction of pain[,]’ . . . proscribed by
the Eighth Amendment.” 177 In reaching this conclusion, the Court
identified four types of punishments “repugnant to the Eighth
Amendment”: (1) those “incompatible with ‘the evolving standards
of decency that mark the progress of a maturing society;” 178 (2)
those “which ‘involve the unnecessary and wanton infliction of
pain;’” 179 (3) those which are “grossly disproportionate to the
Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U.L.
REV. 881, 890 (2009) (criticizing Eighth Amendment doctrine’s undue focus on
what constitutes punishment rather than what is cruel). John F. Stinneford, in a
series of articles, has also criticized current Eighth Amendment doctrine for being
untethered to the original meaning of the words comprising the clause. See John
F. Stinneford, Experimental Punishments, 95 NOTRE DAME L. REV. 39, 48-55
(2020) (hereinafter Stinneford, Experimental Punishments); John F. Stinneford,
The Original Meaning of “Cruel”, 105 GEO. L.J. 441, 502 (2017) (hereinafter
Stinneford, Original Meaning of Cruel); John F. Stinneford, The Original
Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation,
102 NW. U. L. REV. 1739, 1753-54 (2008) (hereinafter Stinneford, Original
Meaning of Unusual).
175
429 U.S. 97 (1976).
176
See, e.g., Estelle, 429 U.S. at 115 (Stevens, J., dissenting) (expressing
puzzlement at the Court’s decision to grant certiorari); Schlanger, supra note 29
at 369 (noting that Estelle “was quite a low-profile case—no amicus briefs were
filed, and the New York Times described the majority opinion as ‘generally
stat[ing] the law as it has been developing in the lower Federal courts”) (quoting
Lesley Oelsner, Prison Medical Care Assayed by Justices, N.Y. TIMES, Dec. 1,
1976, at D24, available at http://www.nytimes.com/1976/12/01/archives/prisonmedical-care-assayed-by-justices-deliberate-indifference-is.html).
177
Estelle, 429 U.S. at 103.
178
Id. at 102, quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).
179
Estelle, 429 U.S. at 103, quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976).

35
Electronic copy available at: https://ssrn.com/abstract=3920518

severity of the crime;” 180 and (4) those which transgress the
“substantive limits of what can be made criminal and punished.” 181
The Court determined that Estelle did not involve the last two types
of punishment and therefore focused its inquiry on the first two.182
Turning to the first two types of punishment, the Court determined
that when the government is punishing someone by incarceration, it
must provide medical care to that person because failing to do so
will result in, at worst, “physical torture or a lingering death” or, at
best, “pain and suffering which no one suggests would serve any
penological purpose.” 183
Importantly, the Court appeared to recognize that the
“punishment” at issue in Estelle is incarceration itself, and the
question posed to the Court is whether the pro se prisoner’s
allegations of inadequate medical care are cruel and unusual such
that the punishment becomes unconstitutional. However, this
recognition becomes muddled by the Court’s decision to reassure
prison officials that not “every claim by a prisoner that he has not
received adequate medical treatment states a violation of the Eighth
Amendment.” 184 To make this reassurance, the Court analogized the
inadvertent failure to provide adequate medical care to the
circumstances at issue in Louisiana ex rel. Francis v. Resweber. 185
In Resweber, Louisiana had sentenced Willie Francis, a Black man,
to death, but a mechanical malfunction “thwarted” the state first
attempt to electrocute him. 186 Mr. Francis “petitioned the Supreme
Court, arguing that a second attempt to execute him would be
unconstitutionally cruel,” and the Court denied Mr. Francis’
petition, reasoning that because the failure of the first attempt was
an “unforeseeable accident,” 187 trying again did not amount to cruel
and unusual punishment even though “it might produce added
Estelle, 429 U.S. at 103, n. 7, quoting Gregg, 428 U.S. at 173.
Estelle, 429 U.S. at 103, n. 7, quoting Robinson v. California, 370 U.S. 660,
667 (1962).
182
Estelle, 429 U.S. at 103, n. 7.
183
Estelle, 429 U.S. at 103, quoting In re Kemmler, 136 U.S. 436, 447 (1890) and
citing Gregg, 428 U.S. at 173.
184
Estelle, 429 U.S. at 105.
185
Id. at 105-06, citing Resweber, 329 U.S. 459, 464, 470 (1947).
186
DAYAN, supra note 26 at 27; see also, Estelle, 428 U.S. at 105.
187
Resweber, 329 U.S. at 464.
180
181

36
Electronic copy available at: https://ssrn.com/abstract=3920518

anguish.” 188 Similarly, according to the Court, an act of mere
negligence with regard to medical care could not be cruel and
unusual under the Constitution. 189
Presciently, Justice Stevens, in dissent, predicted that the
Estelle majority’s focus on “the accidental character of the first
unsuccessful attempt to electrocute the prisoner” in Resweber, and
“its repeated references to ‘deliberate indifference’ and the
‘intentional’ denial of adequate medical care” would attach
unwarranted significance to the “subjective motivation of the
defendant as a criterion for determining whether cruel and unusual
punishment has been inflicted.” 190 While Justice Stevens hinted that
the remedies available against a particular defendant might depend
on his subjective intent, he insisted that the question of “whether the
constitutional standard has been violated should turn on the
character of the punishment rather than the motivation of the
individual who inflicted it.” 191 Referencing a prisoner-of-war camp
from the civil war, Justice Stevens pointed out: “Whether the
conditions in Andersonville were the product of design, negligence,
or mere poverty, they were cruel and inhuman.” 192
Two years after Estelle, in 1978, the Supreme Court again
considered a case involving an Eighth Amendment challenge to
prison conditions. 193 Hutto v. Finney arose from a series of cases
challenging the conditions of the Arkansas prison system—
including the Cummins Unit discussed supra—during the 1960s. 194
By the time the case reached the Supreme Court, the United States
District Court for the Eastern District of Arkansas had issued a series
of remedial orders meant to correct the unconstitutional conditions
Estelle, 428 U.S. at 105.
Id. at 106.
190
Id. at 116 (Stevens, J., dissenting).
191
Id. at 116.
192
Id. at 116-17.
193
Hutto, 437 U.S. at 685.
194
Id. at 680, n. 2 (noting that the case at issue in Hutto began as Holt v. Sarver,
300 F.Supp. 835 (E.D. Ark. 1969) (“Holt I”), a sequel to Talley v. Stephens, 247
F.Supp. 683 (E.D. Ark. 1965) and Jackson v. Bishop, 268 F.Supp. 804 (E.D. Ark.
1967), vacated 404 F.2d 571 (8th Cir. 1968)). Judge Jesse Smith Henley, the Chief
Judge of Eastern District of Arkansas when the cases began in 1965, handled all
of these cases, even by special designation after his appointment to the United
States Court of Appeals for the Eighth Circuit in 1975. Id.
188
189

37
Electronic copy available at: https://ssrn.com/abstract=3920518

it characterized as creating “a dark and evil world completely alien
to the free world.” 195 While the Supreme Court’s inquiry focused on
the propriety of two aspects of the relief ordered by the district
court, 196 the district court’s orders rested on a finding that the
conditions in Arkansas’s prisons violated the Eighth Amendment.197
In reaching its decision on the remedial issues before it, the Supreme
Court reiterated that “[c]onfinement in a prison or in an isolation cell
is a form of punishment subject to scrutiny under Eighth
Amendment standards.” 198 Again, then, the Court implicitly
acknowledged that the punishment examined by the district court
was incarceration, and the district court found that the conditions of
that incarceration rendered the punishment of imprisonment cruel
and unusual. 199
Because Hutto presented an issue related only to remedy, the
Supreme Court did not directly consider the question of when prison
conditions render the punishment of incarceration unconstitutional
until the 1981 case of Rhodes v. Chapman. 200 Relying on Hutto, the
Hutto, 437 U.S. at 681, quoting Holt v. Sarver, 309 F.Supp. 362, 381 (E.D.
Ark. 1970) (“Holt II”).
196
Hutto, 437 U.S. at 680-81.
197
Id. at 681-83.
198
Id. at 685.
199
Id.; see also Holt II, 309 F.Supp. at 372-373. Indeed, the district court’s
conception of the Eighth Amendment supports this conclusion:
It appears to the Court, however, that the concept of “cruel and unusual
punishment” is not limited to instances in which a particular [person] is
subjected to a punishment directed at him as an individual. In the Court’s
estimation confinement itself within a given institution may amount to a
cruel and unusual punishment prohibited by the Constitution where the
confinement is characterized by conditions and practices so bad as to be
shocking to the conscience of reasonably civilized people even though a
particular [person] may never personally be subject to any disciplinary
action. To put another way, while confinement, even at hard labor and
without compensation, is not considered to be necessarily a cruel and
unusual punishment it may be so in certain circumstances and by reason
of the conditions of the confinement.
Id. Thus, the question considered by the district court involved not whether the
challenged conditions amounted to punishment but rather whether the conditions
could be understood as cruel and unusual such that the punishment of
incarceration became unconstitutional.
200
Rhodes, 452 U.S. at 344-45 (noting the case presented the first time the Court
would consider “the limitation that the Eighth Amendment, which is applicable
195

38
Electronic copy available at: https://ssrn.com/abstract=3920518

Court reiterated that incarceration “is a form of punishment subject
to scrutiny under the Eighth Amendment standards,” 201 and it
defined the dispute at issue as a question of whether “the conditions
of confinement at a particular prison constituted cruel and unusual
punishment.” 202 Drawing on Eighth Amendment standards
articulated in other contexts, the Court reiterated that federal courts
must rely on “objective indicia” when determining whether a
particular punishment is cruel and unusual. 203 Underscoring the
“flexible and dynamic” 204 nature of the Eighth Amendment inquiry,
the Court maintained that no “static ‘test’” could be applied to
“determine whether conditions of confinement are cruel and
unusual.” 205 Reiterating the four types of punishment identified in
Estelle as violative of the Eighth Amendment, 206 the Court held that
“[c]onditions [that] deprive inmates of the minimal civilized
measures of life’s necessities” violate the Eighth Amendment. 207
Applying this new rule to the case before it, the Court
examined whether the system of double-celling utilized by the
Southern Ohio Correctional Facility created cruel and unusual
conditions of confinement. 208 To make this determination, the Court
examined whether the “double celling made necessary by the
unanticipated increase in prison population” led to “deprivations of
essential food, medical care, or sanitation” (i.e., the minimal
civilized measures of life’s necessities). 209 The Court concluded that
the findings of fact articulated by the district court amounted to no
such deprivations. 210 The Court then went on, however, to recognize
to the States through the Fourteenth Amendment, imposes upon the conditions in
which a State may confine those convicted of crimes”) (citing Robinson v.
California, 370 U.S. 660 (1962)).
201
Rhodes, 452 U.S. at 345 (quoting Hutto, 437 U.S. at 685).
202
Rhodes, 452 U.S. at 345.
203
Id. at 346, citing Gregg, 428 U.S. at 176-187; Coker v. Georgia, 433 U.S. 584,
593-96 (1977) (plurality opinion).
204
Rhodes, 452 U.S. at 345, quoting Gregg, 428 U.S. at 171.
205
Rhodes, 452 U.S. at 346, citing Trop, 356 U.S. at 101.
206
Rhodes, 452 U.S. at 346-47, n. 12; see also supra at XX.
207
Rhodes, 452 U.S. at 347.
208
Id. at 339-40; 347-48.
209
Id. at 348. The Court also included safety among its list of life’s necessities.
Id. (noting the lack of increased violence).
210
Id.

39
Electronic copy available at: https://ssrn.com/abstract=3920518

that the practice of double celling did deprive incarcerated people of
job and educational opportunities. 211 The Court concluded that such
deprivations, however, did “not inflict pain, much less unnecessary
and wanton pain.” 212 Seemingly, then, the deprivations could not be
deemed cruel and unusual. Rather than draw this conclusion,
though, the Court instead concluded that “deprivations of this kind
simply are not punishments.” 213 This conclusion muddled the issue
presented to the Court, which focused on whether the conditions at
issue were cruel and unusual 214 not whether the conditions
amounted to a punishment above-and-beyond the punishment of
incarceration itself. This type of confusion—as to whether the issue
presented in prison conditions cases involves a question of what is
cruel and unusual versus what is punishment—continued to shape
Eighth Amendment doctrine over the course of the next decade and
muddles the current doctrine’s application today. 215
211

Id.
Id.
213
Id. (emphasis added).
214
Id. at 346.
215
Importantly, the concurring and dissenting opinions in Rhodes cautioned that
the majority opinion may be read “as a retreat from careful judicial scrutiny of
prison conditions.” Id. at 353 (Brennan, J., concurring in the judgment). Justice
Brennan, joined by Justices Blackmun and Stevens, reiterated the importance of
judicial intervention to correct unlawful prison conditions in order to ensure
“constitutional dictates—not to mention considerations of basic humanity—are to
be observed in the prisons.” Id. at 354. Acknowledging the pressing problems
posed by “[o]vercrowding and cramped living conditions,” id. at 356, and the
public apathy toward and political powerlessness of prisoners, id. at 358, Justice
Brennan noted the important role judicial intervention plays in remedying, albeit
slowly, unconstitutional conditions of confinement, id. at 359. Justice Brennan
recognized the federal courts’ role “[i]n determining when prison conditions pass
beyond legitimate punishment and become cruel and unusual.” Id. at 364. To
fulfill that role, Justice Brennan suggested that the focus of the Court’s inquiry
should be on the conditions’ “effect upon the imprisoned.” Id., quoting Laaman
v. Helgemoe, 437 F.Supp. 269, 322-23 (D. N.H. 1977). To Justice Brennan,
“[w]hen the cumulative impact of the conditions of incarceration threaten the
physical, mental, and emotional health and well-being of the inmates and/or
creates a probability of recidivism and future incarceration,” the conditions at
issue violate the Constitution. Id. at 364, quoting Laaman, 437 F.Supp. at 323.
Finding that the evidence considered by the district court failed to demonstrate
serious harm to the prisoners confined to the Southern Ohio Correctional Facility,
Justice Brennan ultimately concurred in the judgment of the Court. Id. at 368.
212

40
Electronic copy available at: https://ssrn.com/abstract=3920518

The next Supreme Court decision to consider the Eighth
Amendment’s application in the prison setting further compounded
the confusion inherent in the majority’s decision in Rhodes. In the
1986 Whitley v. Albers case, the Court considered what standard
governs a prisoner’s claim that a prison official subjected him to
cruel and unusual punishment through the use of excessive force. 216
While the Whitley Court acknowledged that prior Eighth
Amendment precedent refused to require “an express intent to inflict
injury” to find a constitutional violation,217 the Court ultimately
deviated from this maxim when it articulated the excessive force
standard. 218 Citing Ingraham v. Wright 219 for the proposition that
“[n]ot every governmental action affecting the interests or wellJustice Blackmun wrote a separate concurrence to caution against the adoption of
“a policy of general deference” to prison administrators. Id. at 369. Finally, Justice
Marshall, in dissent, cautioned that the majority decision may “eviscerate the
federal courts’ traditional role of preventing a State from imposing cruel and
unusual punishment through its conditions of confinement.” Id. at 375. Finding
that the district court and court of appeals had faithfully discharged their role in
redressing deplorable conditions, Justice Marshall would have left the injunction
entered by the District Court requiring single-celling undisturbed. Id. at 377.
216
Whitley, 475 U.S. at 314. Justice O’Connor, who wrote the 5-4 majority
opinion, framed the question presented the Court a little differently:
This case requires us to decide what standard governs a prison inmate’s
claim that prison officials subjected him to cruel and unusual punishment
by shooting him during the course of their attempt to quell a prison riot.
Id. The dissent, written by Justice Marshall and joined by Justices Brennan,
Blackmun, and Stevens, took issue with this framing, and accused the majority of
conflating questions of fact that “are likely to be hotly contested” with the choice
of a legal standard. Id. at 329.
It is inappropriate, to say the least, to condition the choice of a legal
standard, the purpose of which is to determine whether to send a
constitutional claim to the jury, upon the court’s resolution of factual
disputes that in many cases should themselves be resolved by the jury.
Id. Despite the dissent’s narrow view of the question decided by the Whitley
majority, lower federal courts have since uniformly applied Whitley’s “malicious
and sadistic” standard to cases involving the use of excessive force by prison
officials.
217
Id. at 319.
218
Id. at 319, 320-21.
219
430 U.S. 651, 670 (1977). Ingraham involved a challenge to the use of corporal
punishment at a junior high school, and the Court concluded that such a challenge
could not fall under the purview of the Eighth Amendment. See generally Raff
Donelson, Who Are the Punishers? 86 UMKC L. REV. 259 (2017).

41
Electronic copy available at: https://ssrn.com/abstract=3920518

being of a prisoner is subject to Eighth Amendment scrutiny,” 220 the
Court once-again conflated the inquiry into what the punishment
being challenged is with the inquiry as to whether that punishment
is cruel and unusual. 221 In Whitley, the Court articulated that the
Eighth Amendment standard in cases challenging the use of force
involves the question of “whether the force was applied in a good
faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” 222 The Court
identified several factors relevant to the malicious and sadistic
inquiry, including the need for the application of force, the
relationship between the need for force and the amount of force
used, the extent of the injury, the threat to the safety of staff and
prisoners, and any efforts made to temper the severity of the
response. 223
In contrast to the majority opinion, the dissent in Whitley
would have maintained a focus on objective indicia to determine
whether a particular punishment (i.e., incarceration) has been
rendered cruel and unusual by internal prison conditions. To the
dissenting justices, the correct Eighth Amendment standard to apply
Whitley, 475 U.S. at 319.
This may not be the exact same analytical problem that I’ve identified in
Rhodes (and subsequent conditions cases). In general, the problem with the Eighth
Amendment doctrine is that it has developed an unnecessary focus on intent
because it has been focused (erroneously) on whether the conditions being
challenged are punishment rather than whether the incarceration (i.e., the
punishment) is cruel and unusual because of certain conditions. But it may be in
cases of excessive force that the punishment inquiry is not wrong because the
force is not necessarily attendant to the punishment (incarceration), whereas with
conditions challenges the conditions are attendant to the incarceration. So, in
excessive force cases, there may be a necessary inquiry into the intent of the force,
and we'll need to draw on how the court defines punishment in cases like
Ingraham and Bell v. Wolfish. This could also require an inquiry into whether the
doctrine should be different when the challenge involves “conduct” of a prison
official rather than mere “conditions” within a prison. See Whitley, 475 U.S. at
319 (holding, without citation, that “[t]o be cruel and unusual punishment,
conduct that does not purport to be punishment at all must involve more than
ordinary lack of due care for the prisoner’s interests or safety”). This inquiry,
however, is beyond the scope of this Article.
222
Id. at 320-21, quoting Johnson v. Glick, 481 F2d 1028, 1033 (2d Cir. 1973),
cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973).
223
Whitley, 475 U.S. at 321.
220
221

42
Electronic copy available at: https://ssrn.com/abstract=3920518

in a case of excessive force would have been “the ‘unnecessary and
wanton’ standard,” 224 application of which would require
consideration of the “circumstances of the plaintiff’s injury,
including whether it was inflicted during an attempt to quell a riot
and whether there was a reasonable apprehension of danger.”225
While the dissent did not fully articulate how the “unnecessary and
wanton standard” would apply beyond the facts at issue in Whitley,
it is clear that the focus of the inquiry for those justices would be the
totality of the objective circumstances not the subjective intent of
prison official defendants. 226
The 1991 decision in Wilson v. Seiter 227 brought to a head
the question of whether an Eighth Amendment challenge to prison
conditions required a subjective showing as to the intent of prison
officials. The case involved a challenge lodged by Pearly L. Wilson,
a man incarcerated by the State of Ohio at the Hocking Correctional
Facility (HCF) in Nelsonville, Ohio. 228 Mr. Wilson challenged
HCF’s “overcrowding, excessive noise, insufficient locker storage
space, inadequate heating and cooling, improper ventilation,
unclean and inadequate restrooms, unsanitary dining facilities and
food preparation, and housing with mentally and physical ill
[prisoners].” 229 The question presented involved whether Mr.
Wilson had to demonstrate “a culpable state of mind on the part of
prison officials, and, if so, what state of mind is required” in order
to prove his Eighth Amendment claims. 230
In a 5-4 decision written by Justice Scalia, the Court held
that Estelle, Rhodes, and Whitley “mandate inquiry into a prison
official’s state of mind when it is claimed that the official has
inflicted cruel and unusual punishment.” 231 To support its
conclusion, the majority highlighted that the Eighth Amendment
“bans only cruel and unusual punishment. If the pain inflicted is not
formally meted out as punishment by the statute or the sentencing
Id. at 329.
Id.
226
Id.
227
Wilson, 501 U.S. at 300.
228
Id. at 296.
229
Id.
230
Id.
231
Id. at 299.
224
225

43
Electronic copy available at: https://ssrn.com/abstract=3920518

judge, some mental element must be attributed to the inflicting
officer before it can qualify.” 232, 233 To the majority, then, the
conditions attendant to incarceration could only be challenged under
the Eighth Amendment if they amounted to punishment above and
beyond the punishment of incarceration itself.
Justice White, joined by Justices Marshall, Blackmun, and
Stevens, concurred only in the judgment 234 and criticized the
majority’s understanding of the punishment at issue in prison
conditions cases. 235 Justice White first pointed to the Hutto Court’s
acknowledgment “that the conditions of confinement are part of the
punishment that is subject to Eighth Amendment scrutiny.” 236 The
concurrence then drew on the Court’s analysis in Rhodes to
conclude that
Rhodes makes it crystal clear, therefore, that Eighth
Amendment challenges to conditions of confinement are to
be treated like Eighth Amendment challenges to punishment
that is ‘formally meted out as punishment by the statute or
Id. at 300 (emphasis in original). The Court made this point as support for its
disregard of an argument put forth by Mr. Wilson and the United States as amicus
curiae that suggested conditions claims could be distinguished into two
categories: (1) “‘short-term’ or ‘one-time’ conditions (in which a state-of-mind
requirement would apply) and [(2)] ‘continuing’ or ‘systemic’ conditions (where
official state of mind would be irrelevant).” Id. The Court saw no logical or
practical use in such a distinction but recognized that “[t]he long duration of a
cruel prison condition may make it easier to establish knowledge and hence some
form of intent.” Id.
233
The Wilson Court also clarified that that prisoners could not lodge challenges
to something “so amorphous as ‘overall conditions’” unless those conditions
create a “specific deprivation of a single human need.” Id. at 305. Thus,
[s]ome conditions of confinement may establish an Eighth Amendment
violation “in combination” when each would not do so alone, but only
when they have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need, such as food, warmth, or exercise—
for example, a low cell temperature at night combined with a failure to
issue blankets.
Id. at 304.
234
The majority vacated the decision of the Sixth Circuit and remanded the case
for reconsideration. Id. at 306. The Sixth Circuit had previously affirmed the
district court’s grant of summary judgment to prison officials, concluding that Mr.
Wilson had to meet Whitley’s obduracy and wantonness requirement. Id. at 296.
235
Id. at 307 (White, J., concurring).
236
Id.
232

44
Electronic copy available at: https://ssrn.com/abstract=3920518

the sentencing judge,’—we examine only the objective
severity, not the subjective intent of government officials. 237
In addition to criticizing the departure from precedent inherent in
the majority’s adoption of an intent requirement, the concurrence
predicted (rightly) that intent may be impossible to prove in many
prison conditions cases, in part because of the institutional
indifference outlined in Part I. 238
Inhumane prison conditions often are the result of
cumulative actions and inactions by numerous officials
inside and outside a prison, sometimes over a long period of
time. In those circumstances, it is far from clear whose intent
should be examined, and the majority offers no real guidance
on this issue. In truth, intent simply is not very meaningful
when considering a challenge to an institution, such as a
prison system . . . . having chosen imprisonment as a form
of punishment, a State must ensure that the conditions in its
prisons comport with the ‘contemporary standards of
decency’ required by the Eighth Amendment. 239
Citing to the United States’ brief as amicus curiae, Justice White
cautioned that inhumane prison conditions will be insulated from
judicial review because of the majority’s requirement that the
prisoner-plaintiffs engage in “an unnecessary and meaningless
search for ‘deliberate indifference.’” 240 Notably, neither the

Id. at 309.
Id. at 310.
239
Id. at 310-11, citing DeShaney, 489 U.S. at 198-200.
240
Id. at 311. The United States, as amicus curiae, argued that “seriously
inhumane, pervasive conditions should not be insulated from constitutional
challenge because the officials managing the institution have exhibited a
conscientious concern for ameliorating its problems, and have made efforts (albeit
unsuccessful) to that end.” Wilson v. Seiter, Brief for United States as Amicus
Curiae at 19. A relic of another era, the United States’ position in Wilson stands
in stark contrast to the position taken by the Solicitor General in the COVID-19
cases. See Williams v. Wilson, Application for a Stay of the Injunction Issued by
the United States District Court for the Northern District of Ohio and for an
Administrative Stay, 19A1041, United States Supreme Court (May 20, 2020) at
32,
available
at
https://www.supremecourt.gov/DocketPDF/19/19A1041/143923/202005201543
28301_Wilson%20Stay%20Application%20final.pdf.
237
238

45
Electronic copy available at: https://ssrn.com/abstract=3920518

majority nor concurrence defined what is meant by deliberate
indifference, instead leaving that question for another day.
In the term following Wilson, the Supreme Court heard
another Eighth Amendment case; this one focused on the inquiry
relevant to a claim of excessive force. 241 In Hudson v. McMillian,
Keith Hudson alleged that three officers at the Louisiana State
Penitentiary in Angola, Louisiana used excessive force on him
during the early morning hours of October 30, 1983. 242 Mr. Hudson
claimed that one officer punched him in the mouth, eyes, chest, and
stomach while the second officer held him in place and the third
officer, a supervisor, looked on, telling the first two officer “not to
have too much fun.” 243 As a result of the beating, Mr. Hudson
“suffered minor bruises and swelling of his face, mouth, and lip,”
and he had loosened teeth and a cracked dental plate. 244 The district
court found the three officers violated Mr. Hudson’s rights and
awarded him $800 in damages. 245 The Fifth Circuit reversed,
holding that Mr. Hudson “could not prevail on his Eighth
Amendment claim because his injuries were ‘minor’ and required
no medical attention.” 246 The Supreme Court granted certiorari and
reversed. 247
The Hudson Court announced three important rules in
support of reversal. First, the Court made clear that the standard
articulated in Whitley—“whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm”—applies in all prison excessive forces
cases. 248 Second, the Court determined that because contemporary
standards of decency are violated whenever “prison officials use
force maliciously and sadistically to cause harm,” a prisoner can
bring an excessive force claim whether or not he suffered significant
injury. 249 Third, the Eighth Amendment does not protect de minimis
Hudson v. McMillian, 503 U.S. 1, 4 (1992).
Id.
243
Id.
244
Id.
245
Id.
246
Id at 5.
247
Id. at 5, 12.
248
Id. at 6-7.
249
Id. at 9.
241
242

46
Electronic copy available at: https://ssrn.com/abstract=3920518

uses of physical force, so long as the “force is not of a sort
‘“repugnant to the conscience of mankind.”’” 250
Notably, in announcing these rules, the Court declined to
consider the prison officials’ argument that “their conduct cannot
constitute an Eighth Amendment violation because it was ‘isolated
and unauthorized.’” 251 In other words, the Court refused to consider
whether rogue acts of prison officials fall outside the purview of the
Eighth Amendment because such acts cannot fall within “the scope
of ‘punishment’ prohibited by the Eighth Amendment.” 252 This
refusal is inconsistent with the Court’s singular focus on what
constitutes punishment in Wilson.
Justice Thomas, joined by Justice Scalia, penned a dissent in
Hudson focused on the majority’s “expansion of the Cruel and
Unusual Punishments Clause beyond all bounds of history and
precedent.” 253 Once again harkening on the perceived distinction
between punishment meted out by statute or judge versus
punishment attendant to incarceration, Justice Thomas reminded us
that the Eighth Amendment traditionally did not apply “generally to
any hardship that might befall a prisoner during incarceration.” 254
Therefore, because the Eighth Amendment only applies to “that
narrow class of deprivations involving ‘serious’ injury inflicted by
prison officials acting with a culpable state of mind,” Justice
Thomas would hold that a use of force that causes only insignificant
harm does not amount to cruel and unusual punishment. 255 In Justice
Thomas’ view, then, “our society has no expectation that prisoners
will have ‘unqualified’ freedom from force, since forcibly keeping
prisoners in detention is what prisons are all about.” 256 Therefore,
the Hudson dissent points to the inconsistency in Eighth
Amendment doctrine that requires a showing of seriousness of harm
in medical care cases but not in excessive force cases. 257

Id. at 9-10, quoting Whitley, 475 U.S. at 327.
Id. at 11.
252
Id.
253
Id. at 28 (Thomas, J., dissenting).
254
Id. at 18.
255
Id. at 18, 20.
256
Id. at 26.
257
Id.
250
251

47
Electronic copy available at: https://ssrn.com/abstract=3920518

In the Court’s next term, it heard the Helling v. McKinney
case, which involved a Nevada prisoner’s claim that prison officials
subjected him to cruel and unusual punishment by housing him with
another prisoner who smoked. 258 Mr. McKinney, the Nevada
prisoner, reached trial on two issues: “(1) whether [he] had a
constitutional right to be housed in a smoke-free environment, and
(2) whether [the prison officials] were deliberately indifferent to
[his] serious medical needs.” At trial, the district court granted the
prison officials’ motion for a directed verdict, concluding that Mr.
McKinney had no constitutional right to be housed in a smoke free
environment and that he had not presented sufficient evidence to
demonstrate “medical problems that were traceable to cigarette
smoke or deliberate indifference to them.” 259 The Ninth Circuit
reversed the decision of the district court, holding that the court
“erred by directing a verdict without permitting [Mr. McKinney] to
prove that his exposure to [cigarette smoke] was sufficient to
constitute an unreasonable danger to his future health.” 260 The
prison officials sought Supreme Court review of this decision, but,
in the interim, the Court decided Wilson and, therefore, remanded
the case to the Ninth Circuit for reconsideration in light of Wilson.261
The Ninth Circuit acknowledged that Wilson added a subjective
element to Mr. McKinney’s claim, but it did not otherwise change
its prior decision, which concerned the objective component of the
Eighth Amendment claim (i.e., whether a prisoner-plaintiff might be
able to meet the objective component of the claim by demonstrating
an unreasonable risk to his future health). 262 The prison officials
again sought review from the Supreme Court.
The Court granted certiorari and affirmed in an opinion by
Justice White (who wrote the dissent in Wilson), holding that the
Eighth Amendment protects incarcerated people from future
harm. 263 In reaching this holding, the Court reiterated that “the
treatment a prisoner receives in prison and the conditions under he
Helling, 509 U.S. at 28.
Id. at 28-29.
260
Id. at 29.
261
Id.
262
Id.
263
Id. at 33.
258
259

48
Electronic copy available at: https://ssrn.com/abstract=3920518

is confined are subject to scrutiny under the Eighth Amendment.”264
Implicitly, then, the Court harkened back to the pre-Wilson days
when it viewed conditions claims as challenging not the punishment
of incarceration itself but whether the conditions at issue rendered
such punishment unconstitutional. 265
Justice Thomas, joined by Justice Scalia, dissented once
again. 266 This time Justice Thomas strongly intimated that he would
overturn Estelle if presented the question, and he reiterated and
expanded upon his belief that prison conditions are not and cannot
be punishment protected by the Eighth Amendment. 267 He criticized
the Court’s prior decisions, beginning with Estelle, for never
examining whether the Eighth Amendment’s text and purpose
supported the conclusion that the amendment’s protections should
protect against prison deprivations. 268 To Justice Thomas, “the text
and history of the Eighth Amendment, together with the decisions
interpreting it, support the view that judges or juries—but not
jailers—impose ‘punishment.’” 269 Therefore, the entirety of the
Court’s Eighth Amendment jurisprudence with regard to prison
conditions claims should be overturned. 270
The final case that forms the Supreme Court’s doctrine
around Eighth Amendment claims challenging prison conditions is
Farmer v. Brennan. 271 Farmer reached the Court in 1994 and
involved a challenge to prison conditions brought by Dee Farmer, a
transgender woman living in men’s prisons operated by the Federal
Bureau of Prisons (BOP). 272 Ms. Farmer sued the BOP and several
individual prison officials after being brutally raped and assaulted in
the spring of 1989. 273 In her complaint, Ms. Farmer alleged that the
prison official defendants transferred her to a high security
penitentiary “or placed [her] in its general population despite
Id. at 31.
See supra at XX.
266
Helling, 509 U.S. at 37-42 (Thomas, J., dissenting)
267
Id. at 40, 42.
268
Id. at 42.
269
Id. at 40.
270
Id. at 40-42.
271
511 U.S. 825 (1994).
272
Id. at 829.
273
Id. at 830.
264
265

49
Electronic copy available at: https://ssrn.com/abstract=3920518

knowledge that the penitentiary had a violent environment and a
history of inmate assaults, and despite knowledge that petitioner, as
a [transgender woman] who ‘projects feminine characteristics,’
would be particularly vulnerable to sexual attack by” other people
incarcerated in the penitentiary. 274 Ms. Farmer claimed that these
allegations demonstrated deliberate indifference to her safety and
therefore stated a claim under the Eighth Amendment. 275
After the district court granted summary judgment to the
defendants, finding that Ms. Farmer needed to show they had
“‘actual knowledge’ of a potential danger and the Seventh Circuit
summarily affirmed without opinion, the Supreme Court granted
certiorari to finally define the test for deliberate indifference.276
Justice Souter, writing for the majority, first reiterated that Eighth
Amendment prison conditions cases require a showing that a prison
official has a “sufficiently culpable state of mind,” which means
“‘deliberate indifference’ to inmate health or safety.” 277 He then
went out to define the “proper test for deliberate indifference.” 278
After first describing how the Court used the term deliberate
indifference in the cases described above, 279 it concludes that the
term must mean “something more than mere negligence” and
“something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.” 280 Settling
on the conclusion that deliberate indifference must mean something
akin to recklessness, the Court ultimately determined that prison
officials can only be held liable for disregarding conditions or risks
of which they are subjectively aware. 281 In reaching this conclusion,
the Court again focused on the idea that the Eighth Amendment only
“outlaws cruel and unusual ‘punishments.’” 282
Id. at 830-31.
Id. at 831.
276
Id. at 832.
277
Id. at 834, quoting Wilson, 501 U.S. at 297, 302-03.
278
Farmer, 511 U.S. at 835.
279
Id. at 835.
280
Id.
281
Id. at 841.
282
Id. at 837 (“The Eighth Amendment does not outlaw cruel and unusual
‘conditions’; it outlaws cruel and unusual ‘punishments.’”).
An act or omission unaccompanied by knowledge of a significant risk of
harm might well be something society wishes to discourage, and if harm
274
275

50
Electronic copy available at: https://ssrn.com/abstract=3920518

Justice Blackmun, concurring, recognized the Court’s undue
focus on the word punishment and reiterated that, in his view,
“inhumane prison conditions violate the Eighth Amendment even if
no prison official has an improper, subjective state of mind.”283
Concerned with the pervasive violence in American prisons, Justice
Blackmon highlighted his concern that, for many incarcerated
people, the punishment of incarceration “degenerates into a reign of
terror unmitigated by the protection supposedly afforded by prison
officials.” 284 He then went on to criticize Wilson’s conclusion that
“only pain that is intended by a state actor to be punishment is
punishment.” 285 Rather than recognize that incarceration is the
punishment in prison conditions cases, Justice Blackmon instead
focused his criticism on the idea that someone cannot experience
punishment unless a state actor intends for it to be so. 286 He also
took issue with the Wilson Court’s “myopic focus on the intentions
of prison officials,” which he saw as plainly ignoring the type of
institutional indifference that can arise from the modern American
system of punishment. 287 Justice Stevens wrote a short, paragraph
does result society might well wish to assure compensation. The
common law reflects such concerns when it imposes tort liability on a
purely objective basis. But an official’s failure to alleviate a significant
risk that he should have perceived but did not, while no cause for
condemnation, cannot under our cases be condemned as the infliction of
punishment.
Id. at 837-38.
283
Farmer, 511 U.S. at 851 (Blackmun, J., concurring). Justice Blackmun went
on to criticize the Court’s holding in Wilson, “to the effect that barbaric prison
conditions may be beyond the reach of the Eighth Amendment if no prison official
can be deemed individually culpable, in my view is insupportable in principle and
is inconsistent with the Cruel and Unusual Punishments Clause.” Id.
284
Id. at 853.
285
Id. at 854.
286
Id. at 854-55 (finding the Wilson Court’s analysis “fundamentally misguided,”
explaining that “‘[p]unishment’ does not necessarily imply a culpable state of
mind on the part of an identifiable punisher. A prisoner may experience
punishment when he suffers ‘severe, rough, or disastrous treatment,’ regardless
of whether a state actor intended the cruel treatment to chastise or deter.”)
287
Id. at 855-56 (pointing to Ninth Circuit Judge Noonan’s observations on the
Framers’ concern “with the cruelty that came from bureaucratic indifference to
the conditions of confinement”) (quoting Jordan v. Gardner, 986 F.2d 1521,
1544 (9th Cir. 1993)); see also supra–Part I.B.

51
Electronic copy available at: https://ssrn.com/abstract=3920518

long, separate concurrence reiterating his belief that cruel and
unusual punishment does not require a specific subjective
motivation from a prison official. 288
Finally, Justice Thomas wrote a separate concurrence,
agreeing only in the judgment of the Farmer majority. 289 Reiterating
his view that only judges and juries inflict punishment, Justice
Thomas once again asserted that “[c]onditions of confinement are
not punishment in any recognized sense of the term.” 290 To him,
then, Farmer presented an easy case: “[b]ecause the unfortunate
attack that befell petitioner was not part of [her] sentence, it did not
constitute ‘punishment’ under the Eighth Amendment.” 291
As in Wilson, the Farmer Court’s focus once again ignores
that the punishment at issue in prison conditions cases is
incarceration itself, and the only question truly being presented is
whether or not the conditions at issue in any given case have evolved
such that they can now be deemed cruel and unusual. 292 However,
the Court’s continued failure to recognize that incarceration is the
punishment prisoner-plaintiffs are concerned with in conditions
cases is no surprise when viewed in light of the overwhelming
deference it and the broader federal judiciary have afforded prison
officials for the past half-century.
B. Deference to Prison Officials
While not explicitly part of the Eighth Amendment prison
conditions test, judicial deference to prison officials permeates
federal court decisions applying the doctrine. 293 This is no doubt a
consequence of the explicit deference that is written into the other
Id. at 858 (Stevens, J., concurring).
Id. at 858 (Thomas, J., concurring).
290
Id. at 859.
291
Id. at 859.
292
See Dolovich, supra note 173 at 890. The Farmer Court also goes one to
explain why, in its view, the “objective” deliberate indifference test developed in
City of Canton v. Harris, 489 U.S. 378, 378 (1989), is inapplicable in prison
conditions cases. See Godfrey, supra note 59 at 172-74 for a discussion of the
Farmer Court’s treatment of Harris.
293
Glidden, supra note 173 at 1832-33 (describing how and in what frequency
federal courts defer to the judgment of prison officials in prison conditions cases).
288
289

52
Electronic copy available at: https://ssrn.com/abstract=3920518

doctrines governing constitutional claims brought by incarcerated
people. 294 In non-Eighth Amendment constitutional challenges to
prison policies, the Supreme Court has gone to great pains to explain
the complexity and intractability of the problems confronting those
who run American prisons. 295 Using those justifications, the Court
has developed a doctrine that explicitly accounts for its desire to
largely defer to the choices made by prison officials in running
American prisons. 296
In the context of the Eighth Amendment, the Court has
expressly rejected a doctrine that openly incorporates deference into
the relevant standard. 297 Nonetheless, “in practice, both it and the
lower courts often defer to prison officials in claims analyzing
claims of cruel and unusual punishment.” 298 Moreover, the
deliberate indifference standard itself—even if only implicitly—
developed from a clear concern that a standard that did not require
a showing of intent might lead to increased liability of prison
officials and increased judicial intrusion into the operation of
Godfrey & Rovner, supra note 49 at 140-4 (discussing the doctrine of
deference in certain constitutional claims brought by incarcerated people).
295
See, e.g., Procunier v. Martinez, 415 U.S. 396, 413-14 (1974) (explaining the
policy justifications that inform the doctrine of deference as follows:
[T]he problems of prisons in America are complex and intractable, and .
. . not readily susceptible of resolution by decree. Most require expertise,
comprehensive planning, and the commitment of resources, all of which
are peculiarly within the province of the legislative and executive
branches of government . . . . Moreover, where state penal institutions
are involved, federal courts have a further reason for deference to the
appropriate prison authorities.).
296
Bianchi & Shapiro, supra note 146 at 7 (describing the Turner standard and
the Court’s view of the need for a deferential standard); see also Turner v. Safley,
482 U.S. 78, 89-91 (1987).
297
See Godfrey & Rovner, supra note 49 at 141 (noting that
the Court has expressly rejected reasonable-relationship review for
Eighth Amendment claims, finding that “the full protections of the eighth
amendment most certainly remain in force [in prison]. The whole point
of the amendment is to protect persons convicted of crimes.”
Accordingly, “deference to the findings of state prison officials in the
context of the eighth amendment would reduce that provision to a nullity
in precisely the context where it is most necessary.” )
(quoting Johnson v. California, 543 U.S. 499, 511 (2005) (quoting Spain v.
Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979))).
298
Godfrey & Rovner, supra note 49 at 141-42.
294

53
Electronic copy available at: https://ssrn.com/abstract=3920518

prisons. As the prior section outlines, the current Eighth
Amendment doctrine places undue focus on the subjective intent of
prison officials because of a misplaced concern of ensuring that
conditions being challenged in prison conditions cases amounted to
punishment. But this undue focus can create situations where
ongoing harms inside prisons go uncorrected either because an
incarcerated person cannot prove the subjective intent of an
individual prison official or the institutional intent of the prison
system itself. 299
The problem of uncorrected ongoing harms in prison
conditions cases is playing out acutely in judicial responses to
Eighth Amendment claims relating to the COVID-19 pandemic. 300
A close look at the decisions of federal courts in these cases reveals
a judiciary concerned with maintaining its deference to prison
officials, even in the face of ongoing harm and suffering. 301 Take,
for example, the decision of the United States District Court for the
Eastern District of Arkansas on the Arkansas’ prison system’s
response to the COVID-19 pandemic in the Cummins Unit,
discussed at the beginning of this Part. In that case, Judge Kristine
Baker explicitly acknowledged that the number of infected people
in Arkansas’ prisons (incarcerated people and staff alike) had
increased during the “few weeks” the case had been pending prior
to her decision on the plaintiffs’ request for a preliminary
injunction. 302 Despite this acknowledgment, and a recognition that
the plaintiffs had presented evidence of staff not wearing masks and
gloves, 303 incarcerated people not wearing masks as directed, 304 a
prohibition on alcohol-based hand sanitizer, 305 a months-long delay
299
See Glidden, supra note 173 at 1833-37 (describing the problems with ongoing
harms and institutional intent under the current Eighth Amendment conditions
test); see also Godfrey, supra note 59 at 186-87 (discussing the difficulty of
proving institutional intent in Eighth Amendment conditions cases seeking
injunctive relief).
300
Godfrey & Rovner, supra note 49 at 142.
301
Godfrey & Rovner, supra note 49 at n.99 (detailing cases wherein courts
explicitly deferred to prison officials’ judgment and response to the pandemic,
despite rising infection and death rates).
302
Frazier v. Kelley, 460 F.Supp.3d 799, 842 (E.D. Ark. 2020).
303
Id. at 838.
304
Id.
305
Id. at 839.

54
Electronic copy available at: https://ssrn.com/abstract=3920518

in implementing guidance from the Centers for Disease Control on
social distancing, 306 the denial of care and testing of incarcerated
people displaying COVID-19 symptoms, 307 a lack of follow-up care
for those with COVID-19, 308 a lack of aid from prison staff who
observe incarcerated people “too weak to care for themselves or to
seek medical care,” 309 and the presence of positive, asymptomatic
staff at work, 310 the Court declined to grant the incarcerated
plaintiffs preliminary relief. 311 In reaching this conclusion, the Court
determined the plaintiffs could not meet their burden to establish
deliberate indifference 312 and declined to intrude “into the core
activities of the state’s prison system.” 313 At the time Judge Baker
issued her order on May 19, 2020, at least four incarcerated people
had already died in Arkansas’ prisons. 314 Less than a month later,
seven more people had died. 315 And while the incarcerated plaintiffs
are still litigating their case, the death rate in Arkansas prisons has
continued to rise, with more than fifty people now dead. 316
***
Eighth Amendment doctrine is built to sustain judicial
indifference to the suffering, harm, and death of the incarcerated.
The doctrine ignores the Eighth Amendment’s textual purpose: to
prevent cruel and unusual punishments by the state. In our current
criminal system, criminal courts mete out punishment as a sentence
of incarceration, usually for a term of years. That term of years is
meant to be served in self-contained societies created by the state—
Id. at 839-40.
Id. at 841.
308
Id.
309
Id.
310
Id. at 842.
311
Id. at 846.
312
Id. at 837 (noting that “the Court concludes that plaintiffs have not
demonstrated a likelihood of success on the subjective prong of their Eighth
Amendment claim”).
313
Id. at 846.
314
See generally id.; see also supra Introduction.
315
Id.
316
Id.
306
307

55
Electronic copy available at: https://ssrn.com/abstract=3920518

i.e., prisons. While those sentences do not have to be comfortable, 317
the conditions in which they are served cannot be inhumane nor can
they fundamentally alter the punishment meted out by the state. 318
However, under current doctrine, inhumane prison conditions will
be found perfectly constitutional by the federal courts so long as an
incarcerated plaintiff is unable to prove that prison officials
knowingly imposed those conditions despite knowledge of the risk
of harm. This outcome can be seen in the myriad cases around the
country challenging prison conditions since the outbreak of the
COVID-19 pandemic. In those cases, plaintiffs have presented
ample evidence that the self-contained societies created by the state
have become so toxic that they are becoming death traps, thereby
transforming the state-sanctioned punishment into an extrajudicial
death sentence for some incarcerated people, even in prison systems
where officials are taking steps to mitigate the risk posed by the
virus.
Such a result should not be sustained under the Eighth
Amendment. But the COVID-19 pandemic has seen this result
upheld time-and-again because Eighth Amendment doctrine
encapsulates an inherent indifference to suffering that cannot be
attributed to the intentions of an individual defendant. Even where
prison officials are well-motivated individuals, conditions that pose
a risk of death should be unconstitutional. Under our current system,
they are not because the doctrine governing conditions claims is
inherently indifferent to the suffering of incarcerated people. Thus,
the doctrine creates the second strand of indifference that primed
American prison systems for disaster during the COVID-19
pandemic: judicial indifference.
III. SOCIETAL INDIFFERENCE: OUT OF SIGHT, OUT OF MIND
The final strand of indifference that has amplified the harms
experienced by incarcerated people during the course of the
COVID-19 pandemic is the general societal apathy toward people
behind bars. This indifference stems from the broader societal
indifference to the poor and marginalized.
317
318

Rhodes v. Chapman, 452 U.S. 337, 349 (1981).
Farmer, 511 U.S. at 839.

56
Electronic copy available at: https://ssrn.com/abstract=3920518

Class and classism matter here; this isn’t something that
springs up out of nowhere. We treat being poor, being from
the inner city, being from the country as reasons to be
ashamed even though no one controls the circumstances of
their own birth. We look at places that are being starved of
resources, where being tough is a matter of survival, and then
we say, “In order to have safety, financial stability, housing
that isn’t subpar, you have to be willing to cut away
everything that made you,” and when some people can’t or
won’t do that we punish them for it. It’s assimilation, not
acculturation, that is demanded of people who are already
sacrificing, already making hard choices. 319
It is no secret that the vast majority of people that we lock up in this
country are poor people of color who belong to historically
disadvantaged groups. 320 Undoubtedly because the incarcerated
population comes from these groups, American society tends to
“blame the incarcerated for whatever might happen to them behind
bars. These are bad guys, just getting what they deserve, or so we
think.” 321
Compounding this attitude, mainstream American society
has little understanding of what goes on inside American prison
walls due to the prison systems’ lack of transparency. 322 While the
United States incarcerates nearly 2.2 million people, “the indignities
suffered each day by the human beings living in American prisons
and jails occur largely out of sign from the general public.” 323 This
lack of transparency deprives the American public of the ability to
critically assess whether the societal attitude of “they deserve what
they get” actually withstands scrutiny when the public learns what
MIKKI KENDALL, HOOD FEMINISM: NOTES FROM THE WOMEN THAT A
MOVEMENT FORGOT 139 (2020).
320
GOTTSCHALK, supra note 72 at 4 (noting that the “carceral state has
disproportionately hurt African American men. But it also has been targeting a
rising number of people from other historically disadvantaged groups,” including
women, Hispanics, and poor whites).
321
VENTERS, supra note 4 at 1.
322
Andrea Craig Armstrong, The Missing Link: Jail and Prison Conditions in
Criminal Justice Reform, 80 LA. L. REV. 1, 1 (2019) (arguing that “[j]ail and
prison conditions matter because they are involuntary homes for millions of
people without meaningful public oversight, transparency, or accountability”).
323
Godfrey, supra note 66 at 1115.
319

57
Electronic copy available at: https://ssrn.com/abstract=3920518

“what they get” actually means for incarcerated individuals. In other
words, the American public has little means to examine whether the
punishment occurring through incarceration matches the imagined
punishment meted out at a criminal sentencing. For example, as
Andrea Armstrong acutely observes,
[i]t would be barbaric for a judge to order a person to be
sexually violated as a consequence of a crime. Is it any less
barbaric if it happens incidental to lawful imprisonment?
The same could be said for people denied medical and
mental health care. Serving a certain amount of time in jail
or prison is the intended punishment, not death or injury by
neglect. 324
While we can of course not know how the American public might
react if it knew of the true conditions within the nation’s prisons, we
may never learn if prisons remain “the black boxes of our
society.” 325
One thing we have learned, however, from the Black Lives
Matter movement, is that when brave passerby record police officers
and make those recordings public, people start to pay attention. 326
“But what about places in the United States where people can’t have
cellphone cameras and the state-sponsored violence against Black
people is often ignored or never revealed to the public? This happens
in prisons all the time.” 327 What is going on in prisons is not visible
to the public in the same way that the tragic killings of Black and
brown men has been in recent years, but it is equally as
problematic. 328 But society has granted itself “permission to look
away from the truth” because it views incarcerated people as
“disposable.” 329 In other words, society has embraced stripping
incarcerated people of their individual identity and instead prefers
to refer to the incarcerated in collective terms. Like the institutional
Armstrong, supra note 321 at 18.
Dewan, supra note 66.
326
Johnny Perez, As we work to make Black Lives Matter, let’s remember that
incarcerated lives matter, too, USA TODAY (Aug. 30, 2020), available at
https://www.usatoday.com/in-depth/opinion/policing/2020/08/30/we-workmake-black-lives-matter-remember-prison-lives-matter-too/3313709001/.
327
Id.
328
Id.
329
Id.
324
325

58
Electronic copy available at: https://ssrn.com/abstract=3920518

and judicial indifference described in prior sections, this societal
indifference created and perpetuated a system wherein our prisons
stood doomed to be cautionary tales from the start of the COVID19 pandemic. 330
CONCLUSION
From the start of the COVID-19 pandemic, incarcerated
people and their advocates knew that the pandemic would prove
devastating to the incarcerated unless the prisons, the courts, and
society took dramatic and immediate steps to depopulate the
prisons. 331 Yet, the institutional indifference of the prison systems
themselves, the judicial indifference of the doctrine governing
incarcerated people’s requests for emergency relief, and the societal
indifference of the American public and its attitude toward the
incarcerated combined to make depopulation efforts nearly
impossible.
In describing these three interwoven causes of the failure to
protect incarcerated lives during the pandemic, I used the term
indifference purposefully. Derived from the constitutional doctrine
meant to protect people from cruel and unusual incarceration (the
punishment most utilized by the American criminal system), the
word indifference holds special meaning in the carceral context.
Under the current state of the law, an incarcerated person can only
gain protection from cruel and unusual prison conditions when they
can demonstrate that the cause of those conditions is the deliberate
indifference of prison officials. But what I’ve tried to demonstrate
in the above discussion is that the entire carceral system is built upon
and sustained by these three strands of indifference: institutional,
judicial, and societal. And because these three strands of
indifference are structural in nature, it can be no surprise that they
operate to create cruel and unusual results—i.e., unnecessary
See generally id. (describing how times of uncertainty lay bare how
incarcerated people “have less of a right to live with as much respect and humanity
as everyone else”).
331
Kaste, supra note 13; see also Stacy Weiner, Prison should not be a COVID19
death
sentence, AAMC (Aug. 27, 2020), available at
https://www.aamc.org/news-insights/prison-should-not-be-covid-19-deathsentence.
330

59
Electronic copy available at: https://ssrn.com/abstract=3920518

harms—in the face of an emergency like the pandemic. Ultimately,
the continued existence of these three strands of indifference—
despite demonstrable evidence of the daily suffering occurring
within our modern punishment regime—lends itself to the
conclusion that they are nothing short of deliberate.
While this Article has been largely descriptive in its
assessment of the strands of indifference that combined to create the
cautionary tales of American prisons, I plan to provide prescriptive
policy and jurisprudential reforms in future work aimed at
eliminating these strands of indifference. But, any reform efforts
must be informed by the lessons of abolitionists, who have
explained to us that reform efforts “must be a cultural
intervention,” 332 that the modern prison developed from reform
efforts rooted “in the paradigmatic national power relations of racial
chattel” and has remained “stubbornly brutal, violent and
inhumane” through successive reform efforts, 333 that conceptions of
justice must expose hypocrisy “entrenched in existing legal
practices,” 334 and that a radical reorganization of American society
is necessary to truly dismantle the “issues of systemic and structural
racism” that “should have been addressed more than 100 years
ago.” 335 If we are to truly dismantle the strands of interwoven
indifference that allowed American prisons to become the epicenters
of the pandemic, we must take seriously the calls of these
abolitionists and think critically about how we can build a system of
justice that might allow us to avoid future cautionary tales.

Patrisse Cullors, Abolition and Reparations: Histories of Resistance,
Transformative Justice, and Accountability, 132 HARV. L. REV. 1684, 1694
(2019).
333
Dylan Rodríguez, Abolition as a Praxis of Human Being: A Foreword, 132
HARV. L. REV. 1575, 1581-82, 1597 (2019) (quoting Mariame Kaba, Prison
Reform’s in Vogue and Other Strange Things . . ., TRUTHOUT (Mar. 21, 2014)).
334
Allegra M. McLeod, Envisioning Abolition Democracy, 132 HARV. L. REV.
1613, 1615 (2019).
335
Angela Y. Davis, Why Arguments Against Abolition Inevitably Fail, Abolition
for the People, MEDIUM (Oct. 6, 2020).
332

60
Electronic copy available at: https://ssrn.com/abstract=3920518

 

 

CLN Subscribe Now Ad 450x600
PLN Subscribe Now Ad 450x450
Disciplinary Self-Help Litigation Manual Side