by David M. Reutter

“Carceral deference is a powerful principle built on faulty premises and with troubling and destabilizing effects,” declared Danielle C. Jefferis, an Assistant Professor at the University of Nebraska College of Law, in an article that appeared in the Fordham Law Review.

Deeply ingrained in criminal law jurisprudence of the Supreme Court of the U.S. (SCOTUS) is this “animating principle” of “pathological deference to the government,” as Rachael Barkow described it in The Court of Mass Incarceration.

Contextualizing the concept “historically, politically, and culturally,” Jefferis added that it “plays an enormous role in the constitutional ordering of state power, as well as civil law’s regulation of punishment, a force that is often neglected within the criminal law paradigm.”

There is an “unmistakable consistency” in the field of prison law that is “predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated,” wrote UCLA law professor Sharon Dolovich. Professor Jefferis’ article focused on this judicial deference within prison law, a phenomenon she termed “carceral deference.”

Courts traditionally defer to “state and federal political branches in matters of administrative law, the law of foreign relations, issues of national security, and questions of remedies for constitutional violations,” Jefferis noted. Carceral deference casts its shadow over a “host of legal and practical barriers” to prisoners advancing a lawsuit. They face problems in finding an attorney. They risk retaliation from guards or prison officials. Substantive legal standards are heightened by the Prison Litigation Reform Act, 42 U.S.C. § 1997e.

“Carceral deference refers to the ways in which courts explicitly and implicitly, through application of the relevant doctrine and/or judicial practice, defer to prison officials when presiding over challenges to prison conditions,” Jefferis wrote. This pro-prison judicial leaning gives the field of prison law “a moral center of gravity tilting so far in the direction of [prison officials] that plaintiffs bringing constitutional claims in federal court can expect to win only in the most extreme cases.”

That deference is rooted in the historical fact that prisoners are considered slaves of the state. Prior to the emergence of carceral punishment, Jefferis said “the primary means of punishment was physical: physical beatings, whippings, and executions.” The carceral model focused either on hard labor in total silence followed by solitary isolation or total isolation. “Early penitentiaries operated according to a lock-them-up-and-throw-away-the-key model. By virtue of their incarceration, prisoners sacrificed their civil rights and were subject to the whims of incarcerators; courts were largely hands off.”

Between the 1920s and 1940s, industrial prisons, such as Alcatraz in California, began housing prisoners at high capacity, and the labor-focused philosophy proliferated in prisons. Conditions, however, continued to be brutal. Courts almost always failed to grant relief “on one primary justification: prison officials have particularized expertise in operating carceral spaces and courts should only second-guess their judgment with extreme caution.” But Jefferis said this deference was and is unwarranted. “The dominant actors holding the power in the punishment field during this era, though brutal, were often unskilled and untrained …. By one estimate, strength and sharpshooting skills were the only prerequisites to a prison job.”

As the “beat ‘em” and “keep ‘em” era of punishment yielded to “treat ‘em” in the mid-twentieth century, the warehousing model of imprisonment turned to rehabilitation. Titles changed, with prisoners becoming “inmates.” Guards and penitentiaries became “correctional officers” and “correctional institutions.” Courts took a hands-on approach, with SCOTUS reviving an 1871 law, 42 U.S.C §1983, to provide prisoners a path to federal court in Monroe v. Pape, 365 U.S. 167 (1961). “At one point, forty-eight of America’s fifty-three jurisdictions had at least one facility declared unconstitutional by federal courts,” Jefferis noted.

Predictably, prison officials saw this as “a serious infringement upon their authority” that made it “impossible for them to perform their duties,” as sociologist Leo Carroll explained. Jefferis added that this left prison officials feeling that “[c]ourts had abandoned them, despite their efforts to convince judges that prisoners were inherently dishonest and manipulative, while the officials were inherently credible and working in good faith.”

By the 1980s, the War on Drugs and concerns over rising crime had tilted the scale back toward prison officials. As Jefferis noted, the “rehabilitation ideal had failed, and the public was scared,” The result: “Prisons returned to the harsh, punitive model the focus of rehabilitation was designed to eradicate.”

It was during this period that SCOTUS decided Turner v. Safely, 482 U.S. 78 (1987), setting carceral deference in stone with a four-prong test focused on finding any “legitimate penological interest” to violate a prisoner’s constitutional rights. Jefferis said that Turner “yanked the modicum of power – the power to assert one’s humanity – from incarcerated people” and allowed prison officials to reassume “their position a[s] the dominant actor in the punishment field.

With that, “the prisoners’ rights revolution came to an end, sacrificed to the sweeping power of carceral deference,” Professor Jefferis concluded, encouraging courts to reconsider this principle of deference so lacking in other areas of the law. See: Carceral Deference: Courts and their Pro-Prison Propensities, 92 Fordham L. Rev. (Mar. 2023).  

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