Resisting the Carceral State: Prisoner Resistance from the Bottom Up
Jeffrey Ian Ross
Social Justice; 2009/2010; 36, 3; Criminal Justice Periodicals
pg. 28

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Resisting the Carceral State: Prisoner Resistance from the Bottom Up

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possible to identify all prisoner acts of resistance. Some deprivations require the
intervention of family members, prison activists, the correctional facility, and/or
state or federal government. This, however, is no guarantee that the problems will
be fixed. Because of its overwhelming resources, the state typically reasserts its will
through the legal system, by implementing new polices or practices, or preventing
convicts and their allies from exercising their rights through the mobilization of
bias (Bachrach and Baratz, 1962).1
However, courts no longer consider prisoners to be slaves of the state. (i.e., Ruffin
v. Commonwealth) and penal facilities are no longer sovereign entities. Moreover,
the Supreme Court has explicitly ruled that inmates enjoy constitutional protections
guaranteed by the Bill of Rights. They are applicable to the states via the Fourteenth Amendment (federal guarantees to citizens under the protection of states).
As Justice Douglas noted, "prisoners are still 'persons' entitled to all constitutional
rights unless their liberty has been constitutionally curtailed by procedures that
satisfy all of the requirements of due process" (Procunier v. Martinez, 1974: 428).
A small group of scholars has provided prison, prisoner, or country-specific
reviews of prisoner adaptations and resistance (Buntman, 1998; Bosworth, 1999;
Bosworth and Carrabine, 2001; Carlton, 2008; Gomez, 2006; Law, 2009), but
the field lacks a relatively comprehensive model of the relationship among these
processes. Neither is it geared to the American context or situated as a form of
resistance to state crime. The following discussion reviews the most salient and
problematic prison conditions through a brief examination of prisoner adaptations
and prisoner resistance. 2 The article concludes with an analysis of state reactions
to prisoner adaptations and resistance.

Prison Deprivations as State Crime
Since the Treaty of Westphalia, the state has increasingly been responsible for
the administration of justice. No longer are religious organizations the primary
formal institution of social control for ensuring that people adhere to community
standards and morals. The criminal justice system (CJS) is responsible for making
sure that those who violate the criminal law are arrested, prosecuted, and punished.
In most advanced industrialized democracies, however, the CJS, as one of the
most dominant branches of the state, is not given carte blanche. They must carry
out their work within the confines of procedural and substantive laws. Moreover,
jails and prisons are typically mandated by their state correctional departments to
operate their facilities in accordance with the standards of accreditation approved
by the American Correctional Association. These policies and practices generally
duplicate those found in most civil rights and human rights documents, including
the state and federal constitutions. Finally, inmates are protected by the United
Nations' Universal Declaration of Human Rights, which states, "everyone has the
right to a standard of living adequate for the health and well-being of oneself and
one's family, including food, clothing, housing, and medical care."

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JEFFREY IAN Ross

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Whenjai Is and prisons violate these safeguards, they are committi ng state crimes.
Some of the most dominant state crimes committed by jail and prison workers are
murder, other forms of unnecessary violence, and human rights violations (including
torture, inadequate access to food, failure to provide proper living conditions, etc.).
State crimes against prisoners are crimes of commission and crimes of omission.

Prison ConditionslDeprivations
When individuals are sentenced to jailor prison they suffer numerous deprivations (e.g., National Commission on Safety and Abuse in Prison, 2006; Ross and
Richards, 2002; Ross, 2006; Sykes, 1958). But not all correctional institutions
are the same. Conditions inside jail and prison facilities vary among the federal,
regional, and state systems of corrections, between male and female prisons, and
among different levels of security. Rules and rule violations differ from one facility
to another. What follows is a brief review of the more salient deprivations.

Oppressive Living Conditions
Food: The quality and amount of food holds enormous importance for convicts
(Ross and Richards, 2002: Chapter7; Valentine and Longstaff, 1998). Meals served
in jai Is and prisons need to mai ntain an established nutri tional val ue. These standards
are set by state and federal guidelines and are supported by accrediting agencies
such as the American Correctional Association. However, occasionally, the fruit
and vegetables are or appear to be bruised, overripe, rotten, or canned (Ross and
Richards, 2002: Chapter 7) and the meat and chicken typically are of lowest quality.
Moreover, convicts routinely complain that correctional officers (COs) place excrement, rodent parts, and insects in their food (Hassine, 2004). Whether this actually
happens is difficult to verify. Depending on the prison system, those who are in
solitary confinement may receive "prison loafs," in which the food offered for the
day is ground up, placed in a baking pan, and then reheated before being served to
the inmates. In 2009, prisoners at the North Point Training Center, a correctional
facility in Kentucky, rioted over the inadequate quality of food served to them. As
part of the governmental response, in January 2010, state lawmakers questioned
the DOC's contract with Aramark Correctional Services, which provides food
service to Kentucky prisons and to nearly 600 jails and prison in the United States.
Unsanitary Living Conditions: Individuals sent to jailor prison must worry
about catching serious and possibly life-threatening diseases. Correctional facilities
are typically dirty, lack proper sanitary conditions, are overcrowded, and have poor
ventilation (McDonald, 1999; Murphy, 2003; Speed Weed, 2001). In the United
States, prisoners are at constant risk of being infected with tuberculosis, hepatitis,
and acquired immunity deficiency syndrome (HIV/AIDS). Beyond infectious
diseases, a number of health concerns are caused by unsanitary living conditions,
including: noise/hearing loss, lung cancer, and asbestos poisoning. In situations

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Resisting the Carceral State: Prisoner Resistance from the Bottom Up

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like this, communicable diseases can quickly spread through the entire inmate
population. In November 2009, it came to public attention that the New Jersey
State Commission on Corrections discovered numerous unsanitary practices at the
Nassau County jail, including a lack of appropriate cleaning supplies for floors and
kitchen implements, leaky roofs, and moldy ceilings.
Inadequate Health Care: Medical services are typically limited and substandard (Hylton, 2003; Marquart et aI., 1997; Vaughn and Carroll, 1998). Inmates
will find the medical staff to be small, overburdened, and-even if they care to
help- prevented from doing so by a prison health care system that is under funded,
bureaucratic, and severely limited in the services and medical procedures authorized (Fleisher, 1997). For example, one of the most important recommendations
made by the 2005 Commission on Safety and Abuse of Prisoners was that since
county and state jails and prisons had failed to provide necessary health care, the
services should be taken over by local public health services and by the United
States Public Health Service.
Overcrowding: America'sjails and prisons are severely overcrowded (McKinnon,
2(04). In some facilities, four prisoners are sleeping in cells originally designed for
one person. Other correctional institutions have converted their halls, recreational
areas, and classrooms into dormitories with double and triple bunking. "By 1980,
two-thirds of all inmates in this country lived in cells or dormitories that provide less
than sixty square feet of living space per person-the minimum standard deemed
acceptable by the American Public Health Association, the Justice Department,
and other authorities. Many lived in cells measuring half that" (Hallinan, 2003:
97). California, for example, has one the most severe overcrowding problems in
the country. In 2008, the Berkeley-based Prison Law Office filed suit in federal
court against the overcrowded prison conditions in California prisons. In January
2010, the court mandated the California DOC to reduce the number of inmates by
137.5% of their design capacity.
Lack afPhysical Safety: Correctional facilities are places where many inmates
experience and engage in different kinds of physical violence (Bottoms, 1999;
Fleisher, 1989; Marquart, 1986). These include assaults (both sexual and nonsexual)
(Human Rights Watch, 200 I; Lockwood, 1980; Rideau, 1992), disturbances, rebellions, and riots (Fleisher, 1989; May and Pitts, 2000; Ross, 2006: 81-97). Assaults
between convicts are typically over debts and annoyances, but disturbances, rebellions, and riots are typically protest actions against the administration.
The main form of state-sponsored violence in jail and prison is that stemming
from an inmate's interactions with correctional personnel. Prison staff periodically
use physical violence, including less than lethal force against convicts (Pratt, Maahs,
and Hemmens, 1999; Martin, 2006). Yet, they also occasionally engage in beatings
of convicts that are a direct form of retaliation. Correctional officers (COs) have
been accused and convicted of torture (Kerness and Ehehosi, 2001). In 1992, for
example, prisoner Vaugh Dortch, a prisoner in California's Pelican Bay received

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third-degree burns when COs poured scalding water on his feces-covered body.
Between 1984 and 1994, correctional officers at Corcoran Prison in California
routinely ran "gladiator fights" that pitted rival inmates and gangs against each
other. Seven inmates were killed. Beyond the strict guidelines governing officer
use of force, COs are responsible for the physical safety of inmates. Thus, when
COs fail to prevent assaults or put known enemies in the same cell or tier, they are
engaging in a form of deliberate indifference, which is another form of state crime
(Vaughn and del Carmen, 1995).
Restriction of Prisoner Religious Freedom: Departments of correction have
made it increasingly difficult for many inmates to practice their religious beliefs.
Followers of the Christian and Jewish faiths have found it easiest to follow their
spiritual convictions, while Muslims and those practicing nontraditional faiths
have found it much more difficult. For example, Native Americans have found
it difficult to use (i.e., burn sweet grass) and practice the sweat lodge ceremony
(Archambeault, 2000; 2006). Reasons typically cited by correctional facilities are
safety issues and the failure to provide equal services to others. Individuals claiming to be wiccans (witches) have also fallen prey to this problem. Religious books
sent in from the outside have run afoul of prison censors and been banned. Many
facilities have frustrated, or prevented, practitioners of certain faiths from having
physical space for group worship. In January 2010, after a successful lawsuit, the
California Department of Corrections and Rehabilitation finally agreed to serve
meals following strict Muslim dietary codes to its inmates.
Impaired Access to the Courts: In many jails and prisons. inmates find it increasingly difficult to adequately address their legal needs. For example, many prison
libraries are woefully out of date. Moreover, the administration often limits inmate
access to these libraries, citing security concerns due to understaffing. Prisoners
must also contend with prison mail censors, who often disregard court mandates
that require them to open an inmate's legal mail in his or her presence. Thus, confidential communications between a lawyer and client are subject to gross intrusion
at the hands of prison officials. Finally, many inmates struggle to appropriately file
legal documents. Exorbitant postage, nonexistent mail carriers, and CO retaliation
often preclude a prisoner from meeting court-ordered filing deadlines.
Not all oppressive prison conditions have easily recognizable adaptations. They
are usually problem specific (Fry and Frese, 1992). Some of the most recognizable
adaptations include dependence on the commissary, exercise, practicing proper
sanitary methods, following the inmate code, self-defense, joining a gang, and
enlisting the aid of jailhouse lawyers.

s

Prisoner Resistance to Crimes of the State
Most prisoners direct a considerable amount of resistance toward the institutional conditions of incarceration, COs, and, by extension, the prison management.

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Resisting the Carceral State: Prisoner Resistance from the Bottom Up

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Inmates use these methods when attempting to confront those who implement and
promulgate the rules that lead to deprivations in prison.
Passive-Aggressive Behavior: Short of refusing to comply with a direct order,
prisoners have several creative ways to resist authority. A common one is slow
playing. In general, this involves complying with the direct orders of a CO, but
doing so very slowly or poorly. For example, when an officer tells a group of cons
to paint a corridor, what normally would take a day may require a week. In other
words, it is done in a manner that angers the officer. Alternatively, cons might ignore
the officer and pretend to be hard of hearing (Lerner, 2(02).
Monkey Wrenching: Because of boredom, anger, or frustration, inmates break
equipment or deface the property. Using corrections equipment in a way it was
not intended (including "monkey-wrenching," or purposely breaking equipment)
occurs frequently in factories and industry (Abbey, 1975). Many instances are acts
of low-scale, unconscious rebellion, reflecting frustration with poorly functioning
or maintained equipment, or difficulties with the institution's management. When
equipment does not work properly, inmates may damage itfurtherto demonstrate their
frustration or to compel the administration to finally replace the tool or equipment.
Insubordination: To resist authority and the seemingly arbitrary orders of COs
and the facility, convicts may refuse direct orders from COs. such as getting Ollt
of their cells. COs often perform cell extractions in response, in which a number
of COs, clad in riot gear, sometimes use less than lethal weapons such as pepper
spray. This typically results in a process of re-victimization and additional state
repression, further aggravating prison conditions and subsequent prisoner resistance.
Violence by Convicts Against Themselves: Self-injury may be motivated by
depression or feelings of hopelessness, but it is a way of gaining attention. It demonstrates that the inmate, not the correctional facility, has ultimate control over a
person's life. In a small way, it is a means of getting back at the institution. There
are numerous ways for cons to hurt and/or kill themselves beyond the scrutiny of
correctional workers and other inmates (Ross, 2006: 81-82). This includes selfsuffocation, attempted escape (with being shot almost a certain outcome), or slow
death by having sex with an inmate known to sufferfrom HIV/AIDS.
Enlisting the Help ofOutsiders: Prisoners who have serious medical problems,
need life-saving surgery, expensive medication, and/or sophisticated medical protocols generally require outside intervention (i.e., family, friends, powerful politicians,
etc.) to obtain treatment (Murphy, 2003). Some inmates have resorted to the media
by writing Op-Eds and other sorts of communications to press their cases and get
their voices heard. Collectively known as prisonerjournalism, it has produced people
such as Wilber Rideau and Ron Wikberg (1992), and Mumia Abu-Jamal (19%).
Prisoner litigation and the efforts of several nonprofit organizations- including
the American Civil Liberties Union (through their National Prison Project) and
Human Rights Watch-have attempted to reform jails (Feeley and Swearingen,

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2004; Welsh, 1992; 1995). In almost each major city in the United States, local
justice advocacy organizations work on behalf of jail inmates.
Resorting to the Legal System: Prisoners file writs, motions. lawsuits, and class
action suits (Milovanovic and Thomas, 1989; Schlanger, 2(03). This is done alone,
with the help of outsiders, or, more typically, with the help of jailhouse lawyers
who know how to write legal motions and bring them before a court. Even if the
legal proceedings deny convicts satisfaction, they succeed in tying up the DOCs
resources, intimidating and embarrassing the prison authorities. It is also a form of
communicating with the outside aboutthe conditions ofconfinement (Thomas, 1988).
Over the last five decades beginning in the I960s, lawsuits initiated by prisoners against prison administrators have increased (Schlanger, 2003; Thomas, 1988).
Starting with the Supreme Court's Cooper v. Pate (1964) decision, inmates and their
advocates have used the legal system to achieve important victories regarding the
conditions of their confinement. By asserting violations of various constitutional
principles, prisoners have persuaded sympathetic judges to initiate landmark legal
reforms concerning prison conditions and practices.
Nonetheless, when assessing the validity of any claim that prison policy violates
the Constitution, the Supreme Court weighs several factors. The Court considers
"(a) if there is a valid governmental interest behind the prison regulation in question; (b) whether under this regulation the incarcerated person has other means of
exercising his rights; (c) how the assertion of this right would impact prison costs
and resources; and (d) whether there are alternative means that can be used to
satisfy the governmental interest" (Wyne, 2009, citing Turner v. Safley, 1987). In
sum, "restrictive prison regulations are permissible if they are 'reasonably related
to legitimate penological interests,' and are not an 'exaggerated response' to such
objectives" (Beard v. Banks, 2006: 528, citing Turner v. Safley, 1987: 87).
The Supreme Court grants prison officials wide latitude in managing penal
institutions, theorizing that "modern prison administration" is an "inordinately
difficult undertaking" (Thornburgh v. Abbott, 1989: 407, citing Turner v. Safley,
1987: 85). It states clearly that "subjecting the day-to-day judgments of prison officials to an inflexible, strict scrutiny analysis would seriously hamper their ability
to anticipate security problems and to adopt innovative solutions to the intractable
problems of prison administration" (Turner v. Safley, 1987: 89).

Cruel and Unusual Punishment Claims
Prisoners who challenge the conditions of their confinement do so most often
by alleging violations of the Constitution's Eighth Amendment, which prohibits
the infliction of "cruel and unusual punishment" (e.g., Guthrie v. Evans; Ruiz v.
Estelle). In Estelle v. Gamble, the Supreme Court established a two-part test for
assessing the validity of claims alleging unconstitutional conditions of confinement
(Dolovich, 2009: 889). A prison policy is constitutionally unreasonable if a prisoner establishes each element. First, a prisoner must satisfy an objective standard,

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Resisting the Carceral State: Prisoner Resistance from the Bottom Up

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showing "sufficiently serious" depri vation (Wilson v. Seiter, 1991: 298). Second, a
prisoner must meet a more subjective standard, proving that prison officials acted
with "deliberate indifference" and a "sufficiently culpable state of mind" (Wilson
v. Seiter, 1991: 297-298), such that their conduct rises to the level of an "unnecessary and wanton infliction of pain" (Gregg v. Georgia, 1976: 173). Clarifying this
subjective component of Eighth Amendment jurisprudence in Farmer v. Brennan,
the Supreme Court established that to violate the constitutional prohibition on cruel
and unusual punishment, a prison official must know of and disregard an excessive risk to inmate health or safety (Farmer v. Brennan, 1994: 837). Moreover,
Eighth Amendment claims must also meet the standards enunciated in Turner v.
Safley (1987).
Assuredly, meeting the objective and subjective components of an Eighth
Amendment challenge to confinement conditions poses significant challenges for
prisoners willing to confront state-inflicted harm. Yet, the Court has recognized
certain forms ofdeprivation as constitutionally impermissible. For instance, in Estelle
v. Gamble, the Court held that "deliberate indifference to serious medical needs"
triggers constitutional protections (1976: 104). In Wilson v. Seiter, the Court noted
that withholding basic human needs such as "food, warmth, or exercise" would
violate the Eighth Amendment (1991: 304). Moreover, in Helling v. McKinney,
the Court concluded that a "substantial risk of serious harm" provides fodder for a
cruel and unusual punishment claim (1993: 35). Thus, by using the constitutional
prohibition against cruel and unusual punishment, some inmates have been victorious when challenging state-inflicted harms during a period of incarceration.

Religious Freedom Claims
Though less prevalent than their cruel and unusual counterparts, challenges to
penal practices that curtail religious freedoms have also been a successful weapon
for prisoners seeking to assuage the harm inflicted by the state. Suits in this area
have centered on the constitutional principles of religious freedom and due process.
Under the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech." Most often, prisoners allege such claims.
After passage of the Religious Land Use and Institutionalized Persons Act in
2000, religious freedom claims initiated by convicts have demanded a heightened
level of constitutional scrutiny (Wyne, 2009: 1136, citing 42 U.S.c. §2000cc,
2(00). Yet, courts still weigh factors proclaimed by the Supreme Court in Turner v.
Safley (L 987). Further, the Court has noted that "within prisons, religious activities
themselves may be regulated, as long as these regulations are not discriminatory,
arbitrary, or unreasonable" (Wyne, 2009: 1137).
However, prisoners have successfully challenged prison policies that infringe
on their freedom of religion. For instance, in Cruz v. Beto, the Supreme Court held
that the Texas Department of Corrections violated the First and Fourteenth Amend-

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ments when it failed to provide a Buddhist inmate "a reasonable opportunity of
pursuing his faith comparable to the opportunity afforded fellow prisoners who
adhere to conventional religious precepts" (Cruz v. Beto, 1972: 322). Further, in
Turner v. Safley, the Supreme Court struck down a Missouri regulation that unduly
burdened the right of a prisoner to get married (1987). In Turner, the Court stated
that "the marriage restriction ... does not satisfy the reasonable relationshi p standard,
but rather constitutes an exaggerated response to petitioners' rehabilitation and securit)' concerns" (Turner v. Safley, 1987: 91). Nevertheless, the Supreme Court has
not invalidated a challenged prison policy in the realm of religious freedom since
Turner v. Safley (Wyne, 2(09). Thus, while inmates can challenge discriminatory
policies, their chances for success are slim.

Access to Courts Claims
Claims alleging that prison administrators hindered a prisoner's access to legal
assistance and the courts are also often successful. The Supreme Court has held that
inmates must receive "adequate, effective, and meaningful" access to the courts
(Bounds v. Smith, 1977: 825). As early as 1941, the Court granted the incarcerated court access, concluding, "the state and its officers may not abridge or impair
petitioner's right to apply to a federal court for a writ of habeas corpus" (Ex Parte
Hull, 1941: 642). Yet the Court has also held that to be successful, the doctrine of
standing requires that prisoners initiating litigation regarding access to court must
show "an actual injury stemming from the prison action" (Lewis v. Casey, 1996:
349). Again, such claims must also meet the standard of Turner (1987).
Prisoners' claims alleging insufficient access to courts primarily involve the
filing of petitions/complaints (Bounds v. Smith, 1977), the opening of legal mail
(Wolffv. McDonnell, 1974), and inadequate or inaccessible prison libraries (Younger
v. Gilmore, 1971). In Bounds, the Supreme Court held that prison officials must
provide a prisoner "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts" (Bounds v. Smith, 1977:
825). Further, the Court's decision in Woljfindicted that "while a prison mail clerk
would certainly violate an inmate's rights by censoring or reading the legal mail,
merely opening the envelope potentially chills the communication between attorney
and inmate, and infringes on an inmate's right of access to the courts" (Kummer,
2009). Finally, in Younger, the Court "affirmed a three-judge court judgment which
required state officials to provide indigent inmates with access to a reasonably
adequate law library for preparation of legal actions" (Wolffv. McDonnell, 1974:
578, citing Younger v. Gilmore, 1971: 15).

The State's Response: RevictimizationiObfuscation
The state is not a passive player in these numerous interactions. Like prisoner
resistance, state responses vary on a case-by-case basis, with the most dominant
outlined below.

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Resisting the Carceral State: Prisoner Resistance from the Bottom Up

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Accommodation: Reasonable requests by inmates are often granted if they
have minimal effect on facility budgets or do not compromise the safety of other
convicts or COs. These are usually manifested in changes in policies and practices.
For example, most facilities can easily adapt to opening an inmate's legal mail in
his or her presence. A far greater challenge for prison authorities, however, would
be to reduce the number of prisoners in an institution by one-third to prevent gross
overcrowding. As a result, certain penal systems fail to address such orders even
when given years to comply, leading to continued crimes.
Quelling Prison Disturbances. Rebellions. and Riots: Prison disturbances, rebellions, and riots are doomed to fail. Correctional authorities use various weapons
and tactics to retake the facility. If need be, local law enforcement, state police, the
National Guard, or other military reinforcements will support correctional officers.
No matter how many COs are taken hostage, beaten, or killed, overwhelming force
will inevitably crush the uprising. COs and administrators who survive-or their
replacements-will have months or years to take revenge on those who have defied them. This includes pressing administrative and criminal charges against the
rioters. As much as possible, correctional authorities try to prevent information
about disturbances, rebellions, and riots from getting oul. Usually, news media
only report on a prison riot when convicts take hostages or set an institution on
fire (e.g., Atlanta in 1987).
Stiffer Sanctions and Legislation: Prison authorities recognize that convicts
have 24 hours a day to think of ways to "beat the system." Correctional authorities
thus eventually come to believe that certain actions are not appropriate for inmates.
Recently, some state departments of corrections have banned the use of tobacco or
tobacco-like products (such as nicotine patches). Others have set up places (typically
outside the housing units) where inmates are allowed to smoke. Another problem
for jails and prisons over the past decade has been the possession, use, and smuggling of cell phones into facilities. Correctional officers have the power to write
up prisoners or send them to administrative segregation (i.e., give them a shot or
send them to the hole). In most facilities, this is done through an administrative
hearing. Repeat offenders typically receive extended time in segregation; others
will be sent to more secure facilities, including Supermax prisons.
Reliance on Supermax Prisons: Originally designed to house the most violent,
hardened, and escape-prone criminals, today Supermaxes are increasingly used
for persistent rule-breakers, convicted leaders of criminal organizations (e.g., the
Mafia) and gangs, serial killers, and political criminals (e.g., spies and terrorists)
(see National Institute of Corrections, 1997; Riveland, 1998). In some states, the
criteria for admission into a Supermax facility and the review of inmates' time
inside are very informal or even nonexistent.
Over the past decade, correctional systems at the state and federal levels have
introduced or expanded the use of Supermax prisons (Kurki and Morris, 2001;
Toch, 2001; Neal, 2002; Ross, 2007). These facilities-also known as Special

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(or Security) Handling (or Housing) Units (SHUs) or Control Handling Units
(CHUs)-are stand-alone correctional institutions, or wings or annexes inside an
already existing prison. They are known for their strict lockdown policies, lack of
amenities, and the use of prisoner isolation techniques. Many DOCs lack recognized
criteria for admission to Supermaxes or for how inmates are transferred back to a
lower-security facility.
Shifting the Burden/Blame to Accreditation: Since the mid-l990s, jails and
prisons have engaged in the accreditation process (Levinson, Stinchcomb, and
Greene, 200 I). This process is used to determine if a criminal justice agency
meets a widely agreed-upon standard established by a respected accrediting body.
Correctional facilities can also use this method to self-certify the improvement of
prison conditions, thereby exonerating them from liability connected to prisoner
deprivations. Sponsored by membership organizations such as the American Correctional Association (ACA), these entities send representatives out to correctional
facil ities to investigate whether they are adhering to strict standards and guidelines.
Although about half of the country's prisons are accredited by the ACA, only 120
of the 3,365 jails have passed this standard (National Commission on Safety and
Abuse in Prison, 2006: 16,88).
Consent Decrees/Orders: Inmates have filed numerous class action suits claiming inhumane and unconstitutional conditions and treatment, including overcrowding, delays in medical services, medical neglect, unsanitary food conditions, and
a lack of access to religious amenities. In response, the federal government has
threatened to issue consent decrees against jails, prisons, and functions provided
by correctional facilities (Chilton, 1991). This practice forces state and local correctional facilities to improve conditions of confinement; failure to comply results
in a loss of institutional control to the Federal Bureau of Prisons (FBOP). Such
decrees or orders place extreme pressure on correctional facilities to reform their
practices in accordance with federal guidelines. In 2006, for example, because of
court orders, the State of California ceded control of the health care of its prisoners
to a federal judge.
Responses to Prisoner Litigation: State responses to prisoner litigation include
formal and informal action. The list of prisoner grievances denied by the courts
is long, but to legitimize the numerous lawsuits that prisoners and their advocates
have brought against correctional facilities, the federal government passed the Civil
Rights of Institutionalized Person's Act (1980). This encouraged prisons to deal
with the complaints of inmates on an individual basis. It insured that inmates were
protected against unconstitutional conditions and minimized external interference
in the running of prisons and jails.
In 1996, in an attempt to frustrate what were perceived to be frivolous law
suits, the Congress responded to prisoner litigation with formal action and enacted
the Prisoner Litigation Reform Act of 1995 (PLRA - Pub. L. 104-134, 110 Stat.
1321 11996\). The PLRA imposes stricter guidelines on inmates' efforts to chal-

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Ienge potentially unconstitutional conditions of confinement. In part, the PLRA
states that "no federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility for mental or emotional injury suffered while
in custody without a prior showing of physical injury" (Robertson, 2001: 2, citing
42 U.S.C.A. § I997e(e». Also, the PLRAstipulates "that inmates must exhaust their
administrative remedies before bringing suit in federal courts" (Kummer, 2009: 1202,
citing 42 U.S.c.A. § I997e (a». Thus, though designed to "to prohibit frivolous or
non-meritorious civil claims from proceeding," the PLRA places significant formal
legal obstacles before inmates seeking to confront the state regarding potentially
oppressiveconditionsofconfinement (Ibid.). In short, the state issevereiy inhibiting
prisoners' abilities to protect themselves from the crimes it commits against them.
Informal responses to prisoner litigation are also common. "In many instances,
inmates larel subjected to disciplinary action for filing suits, and COs often hassle
litigious inmates, stealing documents from their cells and otherwise interfering
with their legal activities" (Welch, 2004: 319). As one scholar notes, "retaliation
is deeply engrained in the correctional officer subculture" (Robertson, 2009: 611).
As such, "correctional officers who retaliate against inmates cannot be regarded
as rogue actors" (Ibid.: 613). One study found that 70% of inmates in the Ohio
prison system reported suffering retaliation as a result of filing a grievance (Ibid.).
That study also showed that most prison staff acknowledged the use of retaliation
by their co-workers (Ibid.: 614).
Overcoming formal and informal state responses to prisoner litigation is nearly
impossible. As with the PLRA, toppling formal action by lawmakers often requires
years of systematic legislative and judicial opposition. Challenging informal state
responses to prisoner litigation-retaliation claims-requires a prisoner to show
that "( I) he engaged in protected expression; (2) he suffered an adverse action;
and (3) the adverse action was causally related to the protected expression" (Ibid.:
621). Therefore, formal and informal state responses to prisoner litigation are tremendously resistant to reform, lending to the systemic problem of unconstitutional
prison conditions that has swept the U.S. criminal justice system.

Summary of State and Prisoner Responses
Despite some temporary and mild successes for individual inmates and the
entire inmate population, prisoner resistance often leads to additional or continued
oppression and increased violations of human rights. The state may also respond
with creative and bureaucratic ways to protect and codify its actions. A primary
example of this was the death penalty. In Furman v. Georgia. the U.S. Supreme
Court banned the death penalty on the grounds that it violated the cruel and unusual
punishment protections of the Eighth Amendment. After several years, states found
creative ways to circumvent the intent of the Supreme Court by devising ways to
kill their inmates on death row in ways they claimed were not cruel and unusual.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

40

JEFFREY IAN

Ross

Prisoners have at their disposal many means to resist the carceral enterprise,
ranging from passive-aggressive behavior to the use of the legal system. Some
methods are more active, while others require the expenditure of more resources
and energy. Many are met with resistance from correctional officers and further
sanctions.
Conclusion
Most people do not willingly go to jailor prison. Separated from loved ones
and the freedom that comes with daily existence, they fear having to live for an
extended period of time in the terrible conditions inside. Meanwhile, the general
public, cheered on by moral entrepreneurs and politicians who often approach crime
anecdotally (without the benefit of empirical research or failing to pay heed to it),
believes that harsh prison conditions and long sentences are an effective response
to most lawbreakers. As the preceding review indicates, however, prisoners are not
helpless against the depri vations of incarceration. Rather, most convicts often adapt
to or resist conditions they view as illegitimate and unreasonable.
Moreover, the coalescence of harsh conditions of confinement, prisoner resistance, and state response is a dynamic process. The maltreatment of inmates often
triggers their varied and interrelated responses, ranging from passive adaptation
to active resistance. Accordingly, correctional authorities and courts often craft
counter-responses that are disproportionate to the initial act of prisoner resistance.
This article examines this cyclical process, illuminating the elasticity of the relationship between the state and the inmate, while highlighting a form of resistance
to state criminality that has to date been ignored by criminologists, including
scholars of state crime.

NOTES
I. The denial of felon voting rights in many states is an example of mobilization of bias.
2. Most of the conditions, adaptations, resistance, and state response apply equally to male and
female correctional facilities.

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