UCLA School of Law
Public Law & Legal Theory Research Paper No. 22-25

THE COHERENCE OF PRISON LAW
BY

SHARON DOLOVICH
PROFESSOR OF LAW

135 Harv. L. Rev. F 302

THE COHERENCE OF PRISON LAW
Sharon Dolovich
INTRODUCTION ............................................................................................................................ 302
I. CONSTRUCTING THE DOCTRINE: THE CANONS OF EVASION .................................... 305
II. DECIDING THE CASES: DISPOSITIONAL FAVORITISM................................................... 316
A. Manifestations of Judicial Deference ............................................................................ 316
B. Dispositional Favoritism in the Supreme Court .......................................................... 319
C. Dispositional Favoritism in the Federal Courts .......................................................... 325
1. Munson v. Gaetz .......................................................................................................... 326
2. Singer v. Raemisch ...................................................................................................... 327
3. Holt v. Hobbs ............................................................................................................... 327
4. West v. Byers ................................................................................................................ 328
5. Sixth Circuit Exhaustion Rules ................................................................................. 329
III. THE COVID CASES: DISPOSITIONAL FAVORITISM IN AN EMERGENCY ................ 332
A. Wilson v. Williams ............................................................................................................ 337
B. Swain v. Junior .................................................................................................................. 338
C. Dispositional Favoritism as a Normative Project ......................................................... 339
CONCLUSION ................................................................................................................................. 341

THE COHERENCE OF PRISON LAW
Sharon Dolovich∗
INTRODUCTION
In their welcome new article, Justin Driver and Emma Kaufman
offer a provocative take on American prison law: that it is “fundamentally incoherent.”1 They base this conclusion on the Supreme Court’s
repeated tendency to assert contradictory factual premises about prisoners and prison life.2 In one case, as the authors show, the Court will
characterize prisons as violent and in another as “uncomfortable but
mundane”;3 sometimes the Court describes prisoners as illiterate, at
other times as strategic and effective litigators;4 and so on. If ever one
imagined this area of the law to have a stable factual foundation, Driver
and Kaufman’s dexterous excavation of the Court’s “selective empiricism”5 puts that notion firmly to rest.6
But viewed through a broader lens, the Court’s prison law jurisprudence proves anything but incoherent. For all the factual switchbacks
Driver and Kaufman identify, there is an unmistakable consistency in
the overall orientation of the field: it is consistently and predictably prostate, highly deferential to prison officials’ decisionmaking, and largely
insensitive to the harms people experience while incarcerated. These
features represent the practical manifestation of the divergent normative
inclinations the Supreme Court routinely displays toward the parties in
prison law cases. It is hardly a secret that American carceral institutions
routinely burden prisoners’ fundamental liberties and fail to provide

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∗ Professor of Law, UCLA School of Law. With thanks to Sasha Natapoff for extremely helpful
comments and conversation, and Emma Maynard for excellent research and editorial assistance.
1 Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 HARV. L. REV. 515,
522 (2021).
2 In this essay, I follow Driver and Kaufman’s practice of at times referring to incarcerated people
as “prisoners,” a term that squarely acknowledges the “extraordinary and dehumanizing exercise of
state power known as imprisonment,” id. at 525, and foregrounds the experience of being held against
one’s will with no power to shape one’s own conditions of life. See Paul Wright, Language Matters:
Why We Use the Words We Do, PRISON LEGAL NEWS (Nov. 1, 2021), https://www.prisonlegalnews.
org/news/2021/nov/1/language-matters-why-we-use-words-we-do
[https://perma.cc/GK52-S45Z]
(“[When people are incarcerated, they] are forced into cages at gun point and kept there upon pain of
death should they try to leave. What are they if not prisoners? They did not somehow magically
appear there and they stay there based on violence and fear of violence . . . .”).
3 Driver & Kaufman, supra note 1, at 567.
4 See id. at 550, 552–53.
5 Id. at 567.
6 See id. at 567–71.

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even minimally safe and healthy living conditions.7 Yet with prison
law’s moral center of gravity tilting so far in the direction of defendants,
plaintiffs bringing constitutional claims in federal court can expect to
win only in the most extreme cases, leaving the prison environment
largely free of judicial regulation.
In this essay, I explore the mechanisms by which, despite what is
known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in
favor of the state. In particular, I zero in on two components of the
judicial process in this context: the construction of defendant-friendly
doctrinal standards for deciding prisoners’ claims and the deferential
posture with which federal courts tend to approach defendants’ assertions in individual cases. As to the doctrine, especially during the
Rehnquist Court, the Supreme Court systematically deployed a set of
maneuvers — which I have elsewhere termed canons of evasion8 — to
construct doctrinal standards for prison law cases that strongly incline
courts to rule in favor of the state. In Part I, by way of illustration, I
map the deployment of these various mechanisms in two especially consequential cases, Whitley v. Albers9 and Turner v. Safley,10 and show
how their use operates to create a doctrinal environment decidedly unfavorable to prisoners’ claims.
Yet skewed doctrinal standards alone cannot explain prison law’s
strong pro-state bent. Given the generally noxious character of
American prisons, one would still expect incarcerated plaintiffs to prevail more frequently notwithstanding onerous standards. This brings
us to the second piece of the puzzle: the way that, in practice, courts
hearing prison law cases will often side with defendants even when
plaintiffs’ claims are strong on the merits and even when defendants’
proffered arguments strain credulity. To achieve this effect requires a
judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. In Part II, I argue that, in prison law
cases, judges are primed to approach the parties’ submissions in precisely this way. Examining the Supreme Court’s prison law opinions, I
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
7 See, e.g., Sharon Dolovich, Prison Conditions, in 4 REFORMING CRIMINAL JUSTICE:
PUNISHMENT, INCARCERATION, AND RELEASE 261, 263–64 (Erik Luna ed., 2017); Sharon
Dolovich, The Failed Regulation and Oversight of American Prisons, 5 ANN. REV. CRIMINOLOGY
153, 156–58 (2022) [hereinafter Dolovich, The Failed Regulation]; Eyal Press, A Fight to Expose the
Hidden Human Costs of Incarceration, NEW YORKER (Aug. 16, 2021), https://www.newyorker.com/
magazine/2021/08/23/a-fight-to-expose-the-hidden-human-costs-of-incarceration
[https://perma.cc/
5TRU-7E58].
8 See Sharon Dolovich, Canons of Evasion in Constitutional Criminal Law, in THE NEW
CRIMINAL JUSTICE THINKING 111, 111 (Sharon Dolovich & Alexandra Natapoff eds., 2017).
9 475 U.S. 312 (1986).
10 482 U.S. 78 (1987).

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surface the moral psychology they promote, which orients courts to regard prison officials’ arguments favorably while viewing prisoners’
claims with skepticism and even hostility. As a consequence of this posture, which I term dispositional favoritism, federal courts hearing prison
cases can wind up favoring defendants in any number of ways hard to
square with either the record or the relevant legal rules — including
making questionable factual assertions, a phenomenon of a piece with
the Court’s use of “selective factual generalizations” that Driver and
Kaufman so definitively expose.11 It is, in other words, the Court’s dispositional favoritism that explains the contradictory factual premises
“about the purpose and inhabitants of penal institutions” that Driver
and Kaufman track in such revealing detail across the cases and that,
as the authors note, “consistent[ly] . . . tend to shift in ways that benefit
the government.”12
Certainly, prisoners who manage to get into federal court13 will
sometimes win. But for incarcerated plaintiffs to prevail on the merits
typically requires glaringly indefensible treatment, highly questionable
official justifications, dedicated and adept lawyers committed to pressing plaintiffs’ claims, and courts open to taking those claims seriously.14
These combined requisites are sufficiently rare that, for the most part,
macro-level conditions remain undisturbed by the courts, which can create the misimpression that the baseline reality of life in prison must pose
no constitutional problem. The marked disinclination of federal courts
to find all but the most extreme conditions unconstitutional thus facilitates judicial findings for defendants in subsequent cases. It also helps
to vindicate the seeming moral rightness of those holdings, since if prison
conditions are known in the main to be constitutionally unproblematic,
prisoners alleging unconstitutional treatment must only be trying to
game the system to get more than they deserve. In this way, dispositional favoritism is self-reinforcing.
These dynamics, hidden in plain sight, had been present in the prison
law doctrine for decades. Then came Covid-19. Suddenly, what may
previously have seemed like the piecemeal shielding of prison officials
from constitutional liability emerged as an undeniable uniform refusal
on the part of the federal courts to seriously entertain any constitutional
challenge to conditions plainly putting people in prison at outsized risk
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11
12
13

Driver & Kaufman, supra note 1, at 522.
Id. at 568.
See Dolovich, supra note 8, at 114–16 (canvassing the many obstacles the incarcerated face to
getting a hearing on the merits in federal court).
14 See, e.g., Brown v. Plata, 563 U.S. 493, 493 (2011); Greenhill v. Clarke, 944 F.3d 243, 245–46
(4th Cir. 2019); Gray v. Hardy, 826 F.3d 1000, 1000 (7th Cir. 2016); Prison Legal News v. Cook, 238
F.3d 1145, 1153 (9th Cir. 2001); Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 1003–04 (E.D.
Cal. 2009).

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of illness and death.15 As Part III shows, the methods courts used to
deny plaintiffs’ claims were not new: to find for the state, courts simply
deployed the same mechanisms that had been used for years to deflect
prisoners’ constitutional claims. At the same time, Covid exposed dynamics long present in prison cases, confirming that the federal judiciary, although providing constitutional relief in some marginal cases, in
practice offers only the most minimal check,16 constitutional or otherwise, on the abuse, neglect, and callous indifference that largely typify
the administration of American prisons.17 Covid, in short, definitively
confirmed the terrible coherence of prison law.
That the Court has long been predisposed to favor some parties over
others has been well documented, as has the general normative direction
of the Court’s predilections in favor of the rich and powerful and against
the poor and disenfranchised.18 What I am mapping here is the way
this troubling orientation manifests in prison law — and how the Court
has managed to refashion its own evident sympathy for prison officials
and hostility to the legal claims of incarcerated litigants into a governing
ethos shaping judicial deliberations across the field.
I. CONSTRUCTING THE DOCTRINE:
THE CANONS OF EVASION
Prior to the 1960s, federal courts largely took a “hands-off”
approach to prisoners’ constitutional claims.19 However draconian
the challenged conditions, however extreme the abuse alleged,
federal judges perceived themselves to lack authority over constitutional claims arising from prison.20 Then, in 1964, in Cooper v.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
15 Brendan Saloner et al., Research Letter, COVID-19 Cases and Deaths in Federal and State
Prisons, 324 J. AM. MED. ASS’N 602 (2020); Sharon Dolovich, Mass Incarceration, Meet
COVID-19, U. CHI. L. REV. ONLINE (Nov. 16, 2020), https://ssrn.com/abstract=3766415
[https://perma.cc/Y7L6-NHZ6].
16 Dolovich, The Failed Regulation, supra note 7, at 164–68.
17 Id. at 156–58, 160–64, 168–70.
18 See generally ERWIN CHEMERINSKY, PRESUMED GUILTY: HOW THE SUPREME COURT
EMPOWERED THE POLICE AND SUBVERTED CIVIL RIGHTS (2021); ERWIN CHEMERINSKY,
CLOSING THE COURTHOUSE DOOR: HOW YOUR CONSTITUTIONAL RIGHTS BECAME
UNENFORCEABLE (2017); ERWIN CHEMERINSKY, THE CASE AGAINST THE SUPREME
COURT (2014); ADAM COHEN, SUPREME INEQUALITY: THE SUPREME COURT’S
FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA (2020).
19 Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 CORNELL L.
REV. 357, 368 n.53 (2018) (tracing the lineage of the “‘hands-off’ phrase”).
20 See MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE
MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS 30–34 (1998); Note,
Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts,
72 YALE L.J. 506, 506–07 (1963); see also United States ex rel. Atterbury v. Ragen, 237 F.2d 953,
954 (7th Cir. 1956) (finding that federal courts lacked jurisdiction to hear a case in which the plaintiff alleged having received “vicious beatings . . . at the hands of various defendants,” having been
“placed in solitary confinement . . . for two months without clothes or blankets, . . . deprived of any

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Pate,21 the Supreme Court signaled a jurisdictional shift. Thomas X.
Cooper, a Muslim, had “alleged that prison officials had blocked his access to religious services, ‘materials disseminated by the Black Muslim
Movement,’ and the Koran.”22 The district court dismissed the case for
failure to state a claim, but in a one-paragraph per curiam opinion, the
Supreme Court reversed, finding that “the complaint stated a cause of
action and [that] it was error to dismiss it.”23
Cooper opened the courthouse door to incarcerated litigants. By the
mid-1970s, the Court had decided a string of cases establishing federal
court jurisdiction over a wide range of prisoners’ constitutional claims,
including First Amendment speech24 and association,25 due process
right of access to the courts,26 procedural due process,27 and Eighth
Amendment medical neglect.28 In these cases, plaintiffs did not always
prevail. But the Court took for granted that the claims raised were
among those the federal courts may properly consider and endorsed the
courts’ role in enforcing the Constitution in prison.
Over the ensuing decades, the list of prison law claims the federal
courts entertained as a matter of course expanded still further, coming
to include asserted violations of the Fourth Amendment,29 substantive
due process,30 and a range of Eighth Amendment claims, including excessive force,31 failure to protect,32 and unconstitutional conditions.33
Yet even as the list of potential entitlements grew, the Court systematically increased the doctrinal burdens on incarcerated plaintiffs and repeatedly emphasized the deference courts owed prison officials, clearly
signaling its unwillingness to provide more than minimal protection for
prisoners.34
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food” for five days, and having been “denied mail including a copy of the constitution of Illinois
sent to him at his request by the Secretary of State”).
21 378 U.S. 546 (1964) (per curiam).
22 Driver & Kaufman, supra note 1, at 529 (quoting Cooper v. Pate, 324 F.2d 165, 166 (7th Cir.
1963), rev’d, 378 U.S. 546 (1964) (per curiam)).
23 Cooper, 378 U.S. at 546.
24 See Procunier v. Martinez, 416 U.S. 396, 400 (1974), overruled in part by Thornburgh v.
Abbott, 490 U.S. 401 (1989); Pell v. Procunier, 417 U.S. 817, 819 (1974).
25 See Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 121 (1977).
26 See Martinez, 416 U.S. at 419; Johnson v. Avery, 393 U.S. 483, 484 (1969).
27 See Wolff v. McDonnell, 418 U.S. 539, 542–43 (1974).
28 See Estelle v. Gamble, 429 U.S. 97, 101 (1976).
29 See Hudson v. Palmer, 468 U.S. 517, 519 (1984).
30 See McKune v. Lile, 536 U.S. 24, 37 (2002) (plurality opinion); Turner v. Safley, 482 U.S. 78,
83 (1987).
31 See Hudson v. McMillian, 503 U.S. 1, 4 (1992); Whitley v. Albers, 475 U.S. 312, 314 (1986).
32 See Farmer v. Brennan, 511 U.S. 825, 829 (1994).
33 See Wilson v. Seiter, 501 U.S. 294, 296 (1991); Rhodes v. Chapman, 452 U.S. 337, 339 (1981).
34 See Block v. Rutherford, 468 U.S. 576, 585 (1984); Bell v. Wolfish, 441 U.S. 520, 547 (1979);
Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 125 (1977); Pell v. Procunier, 417 U.S. 817,

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The Court’s retreat from the possibility of meaningful constitutional
protections occurred over decades, accelerating most markedly during
the Rehnquist Court. Over this period, in its prison law cases, the Court
repeatedly established doctrinal standards with a striking effect: systematically allowing courts to maintain the appearance of meaningful
judicial review — admitting evidence, hearing arguments, applying governing legal standards to the facts of the case, and so on — and yet
readily finding for the defendants almost regardless of the facts before
them.35 This effect is plainly evident in the key Eighth Amendment
cases of Whitley v. Albers and Farmer v. Brennan,36 and also in Turner
v. Safley, the case that governs the bulk of non–Eighth Amendment
claims brought by prisoners. To be sure, some cases do not conform to
this pattern. But these instances are rare and, as we will see, serve more
to reinforce than to disprove the general point.
Take first the Eighth Amendment cases. There is no dispute that
the Eighth Amendment — which prohibits the infliction of “cruel and
unusual punishment”37 — obliges correctional officers (COs) to provide
for prisoners’ basic needs. As the Court has repeatedly observed, under
the Eighth Amendment, the state is duty-bound to provide people in
custody with “the minimal civilized measure of life’s necessities,”38 including physical safety.39 Among the vital protections the Eighth
Amendment thus accords the incarcerated is its proscription on excessive force.40 It is hard to overstate the urgency of this prohibition for
those in custody. Without some meaningful external check, the hidden
nature of prison life can invite COs to use violence against prisoners
with impunity. And when COs exercise their power in this way, the
pain, injury, and trauma inflicted on prisoners may be considerable.41
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
827–28 (1974); Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT’G REP. 245,
246–49 (2012).
35 See Sharon Dolovich, Evading the Eighth Amendment: Prison Conditions and the Courts, in
THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT 133, 134
(Meghan J. Ryan & William W. Berry III eds., 2020) [hereinafter Dolovich, Evading the Eighth
Amendment]; Dolovich, supra note 8, at 112–13.
36 511 U.S. 825 (1994).
37 U.S. CONST. amend. VIII.
38 Rhodes, 452 U.S. at 347.
39 See Farmer, 511 U.S. at 833.
40 For an extended examination of the moral implications of COs’ use of force against prisoners,
see Sharon Dolovich, Excessive Force in Prison (July 22, 2021) [hereinafter Dolovich, Excessive
Force] (unpublished manuscript) (on file with the Harvard Law School Library).
41 See, e.g., Whitley v. Albers, 475 U.S. 312 (1986) (COs shot plaintiff in the leg and left him bleeding for ten to fifteen minutes before attending to his wounds); Johnson v. McCowan, No. 20cv00582,
2021 WL 3027955, at *1 (W.D. Va. July 19, 2021) (COs unleashed a canine on plaintiff while he lay
prone on the floor); Dawson v. Cook, 238 F. Supp. 3d 712, 714–15 (E.D. Pa. 2017) (defendant CO
beat plaintiff on the head severely enough for plaintiff to lose vision in one eye); Banks v. Cnty. of
Westchester, 168 F. Supp. 3d 682, 685 (S.D.N.Y. 2016) (defendant CO slammed plaintiff’s hand into
a steel door, smashed his head on the floor, and kicked disinfectant into his eye).

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Judicial review of Eighth Amendment excessive force claims is supposed to offer the requisite external check against such abuses. If it is
to serve this purpose, a constitutional standard is required that would
allow courts to fairly and independently assess whether force was warranted. In Whitley, however, the Court went in a different direction,
holding that whether force exceeds Eighth Amendment limits “ultimately turns on ‘whether [it] was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.’”42 In the universe of mens rea standards, it
is hard to conceive of a higher one than this. Whitley’s “maliciously and
sadistically” standard, moreover, is entirely subjective. After Whitley,
the only question courts must answer when assessing the constitutionality of deliberate violence by COs against prisoners is whether the defendants themselves believed the force was warranted — a standard
deemed met if the courts can identify any “plausible basis for the officials’ belief that [the] degree of force was necessary.”43 If so, the force
cannot have been used solely “for the . . . purpose of causing harm”44
and must therefore pass constitutional muster. In case this directive was
not clear enough, Whitley was explicit that when the evidence suggests
“a mere dispute over the reasonableness of a particular use of force or
the existence of arguably superior alternatives. . . . [then] the case should
not [even] go to the jury.”45
That this standard is intrinsically defendant friendly is undeniable.
Perhaps most strikingly, it delegates to prison officials the power to set
constitutional limits on the use of force in prison, although it is these
very officers whose conduct the Eighth Amendment is supposed to constrain. To reach such a surprising and minimally protective outcome,
the Court deployed three strategies of doctrinal construction I have elsewhere collectively termed the canons of evasion: the insistence on
deference, a presumption of constitutionality, and the introduction of a
substitute question.46
First, there is the inevitable call for deference. In almost all its prison
law cases since 1974,47 the Court has emphasized the imperative of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42 Whitley, 475 U.S. at 320–21 (emphasis added) (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)).
43 Id. at 323.
44 Id. at 321 (quoting Johnson, 481 F.2d at 1033).
45 Id. at 322. In dissent, Justice Marshall took strong issue with the suggestion that no constitutional liability could lie even should defendants have had available to them “arguably superior
alternatives.” Id. As Justice Marshall observed, “if prison officials were to drop a bomb on a
cellblock in order to halt a fistfight between two inmates,” the Court would have no difficulty finding such action “sufficiently wanton to present a jury question.” Id. at 333 (Marshall, J., dissenting).
46 See Dolovich, supra note 8, at 112–13.
47 The Court began hearing prison law cases in earnest in 1974. In that year alone, the Court
decided Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part by Thornburgh v. Abbott, 490

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judicial deference to prison officials’ judgments, and Whitley is no exception. Writing for the Whitley majority, Justice O’Connor justified
the “maliciously and sadistically”48 standard by insisting that “[p]rison
administrators . . . should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain
institutional security.”49 This degree of deference, Justice O’Connor insisted, “does not insulate from review actions taken in bad faith and for
no legitimate purpose.”50 It does, however, “require[] that neither judge
nor jury freely substitute their judgment for that of officials who have
made a considered choice.”51
This highly deferential framing, in which the need for deference is
explicitly invoked as a legal principle in its own right, reveals the second
evasive maneuver employed by the Whitley Court: baking into the
standard a presumption of constitutionality as to the defendants’ conduct. In foreclosing judicial scrutiny absent evidence that the defendant
used force maliciously and sadistically, the Court effectively established
an irrebuttable presumption that anything short of conduct evincing a
“knowing willingness” to inflict unjustified harm is necessarily constitutional.52 This move alone has the remarkable effect of shielding COs’
conduct from judicial scrutiny so long as they could have had some
security-based justification for their conduct — even when that conduct
involved the deliberate use of violence against prisoners and regardless
of the degree of force used.
Whitley’s directive to courts to focus on the defendant’s subjective
view of the matter produces the third evasive move employed in the
case: the introduction of a substitute question that will allow courts to
find for defendants without ever reaching what is arguably the real
issue — whether COs’ actions were consistent with their constitutional
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
U.S. 401 (1989), Pell v. Procunier, 417 U.S. 817 (1974), Saxbe v. Washington Post Co., 417 U.S. 843
(1974), and Wolff v. McDonnell, 418 U.S. 539 (1974).
48 Whitley, 475 U.S. at 320 (quoting Johnson, 481 F.2d at 1033).
49 Id. at 321–22 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Justice O’Connor also emphasized that “when the ‘ever-present potential for violent confrontation and conflagration,’” id. at
321 — cue Driver and Kaufman’s “mythic prison,” Driver & Kaufman, supra note 1, at 512, which
in Whitley becomes a tinderbox full of perpetually violent inhabitants unaccountably liable to explode at any moment — “ripens into actual unrest and conflict, the admonition that ‘a prison’s
internal security is peculiarly a matter normally left to the discretion of prison administrators’ carries special weight,” Whitley, 475 U.S. at 321 (citations omitted) (quoting Jones v. N.C.
Prisoners’ Lab. Union, Inc., 433 U.S. 119, 132 (1977); Rhodes v. Chapman, 452 U.S. 337, 349 n.14
(1981)).
50 Whitley, 475 U.S. at 322.
51 Id.
52 See id. at 321 (directing courts to determine whether, on the evidence, “inferences may be
drawn as to whether the use of force . . . evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness that it occur”).

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obligations to those in their custody. Rather than considering when
force in prison is constitutionally justified and crafting a standard that
reflects constitutional limits, Whitley directs judges to assess whether
any “plausible basis” existed for the defendants’ subjective view that
“this degree of force was necessary.”53 As might be expected, only in
cases featuring the most extreme facts, on which no one could doubt the
gratuitousness of the COs’ assault on the plaintiff,54 will courts generally
decide this question in defendants’ favor.
One can see these same evasive canons at work in the 1994 case of
Farmer v. Brennan. In Farmer, the Court established the operative standard for all Eighth Amendment prison conditions claims55 except excessive
force.56 In previous cases, the Court had held that plaintiffs bringing such
claims must show that defendants were “deliberately indifferent” to the
dangers prison conditions posed.57 It had, however, left open the question
of precisely what this showing requires. Farmer resolved the matter, defining Eighth Amendment deliberate indifference as the equivalent of
criminal recklessness.58 As I have shown in detail elsewhere,59 with this
holding, the Court foreclosed constitutional liability for prison conditions
absent evidence that defendants actually realized the risk of harm plaintiffs faced — even if the danger was substantial and glaringly obvious,
even if a reasonable person in the defendant’s situation would have recognized the urgent need to act, and even if the defendant herself would
have noticed the danger if only she had been paying proper attention.
Thanks to Farmer’s highly deferential standard, the (substitute) question
courts must ask when prisoners challenge their conditions of confinement
is not whether COs failed to take adequate steps to protect plaintiffs from
serious risks to their health and safety, but instead whether defendants
personally realized the risk. Absent such a finding, even the most harmful
prison conditions are presumed constitutional.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
53
54

Id. at 323.
See, e.g., United States v. Walsh, 194 F.3d 37, 40 (2d Cir. 1999) (upholding defendant CO’s
criminal conviction under 18 U.S.C. § 242 for multiple Eighth Amendment violations where the
defendant, who weighed over 300 pounds, was found to have stepped on a prisoner’s penis, “‘mashing’ it as one might have extinguished a cigarette,” id. at 43).
55 See Dolovich, Evading the Eighth Amendment, supra note 35, at 149–52; Sharon Dolovich,
Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881, 943–48 (2009). For
a detailed exegesis of the canons of evasion as they operate in Farmer v. Brennan, 511 U.S. 825
(1994), see Dolovich, supra note 8, at 130–35.
56 Farmer’s deliberate indifference standard applies to claims of medical neglect, the deprivation
of basic human needs, and the failure to protect people from physical or sexual assault by fellow
prisoners. See Farmer, 511 U.S. at 825, 835, 837–38; see also id. at 837 (failure to protect); Wilson
v. Seiter, 501 U.S. 294, 303 (1991) (deprivation of basic human needs); Estelle v. Gamble, 429 U.S.
97, 104 (1976) (medical neglect).
57 See Wilson, 501 U.S. at 303; Estelle, 429 U.S. at 104.
58 Farmer, 511 U.S. at 837.
59 See Dolovich, supra note 8, at 130–35.

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In sum, by deploying the canons of evasion in Whitley and Farmer,
the Court established heavily pro-defendant standards for virtually all
constitutional claims implicating prisoners’ health and safety. Courts
apply these standards as if they provide meaningful protection against
unconstitutional conditions. But in practice, barring extreme abuse or
glaring neglect, defendants will generally prevail, although it seems
plain that such a defendant-friendly regime will almost certainly lead to
increased physical pain and suffering inflicted by the very officers dutybound to keep prisoners safe. The Court’s failure even to consider this
possibility well illustrates its overall blindness to the impact of its decisions on the human beings held in the facilities whose conditions the
Court is so reluctant to scrutinize.60
What of prison law claims outside the Eighth Amendment? The
incarcerated retain a wide range of fundamental constitutional liberties,
violation of which entitles them to petition for judicial redress. In this
broad sphere, as Driver and Kaufman explain, there is one case that
with very few exceptions61 has come to set the standard for all non–
Eighth Amendment constitutional claims brought by incarcerated plaintiffs: Turner v. Safley.62 It is hard to conceive of a more deferential
standard than Turner, or one that creates a stronger presumption of constitutionality. Indeed, in crafting the Turner standard, the Court made
such effective use of the evasive strategies of deference and presumption
that the standard itself, although superficially recognizable as a species
of rational basis review, effectively functions as its own substitute question. That is, simply by applying Turner, courts are able to find for
defendants without needing to look too closely at either the facts of the
case or the strength of the plaintiff’s arguments.
Turner dealt with two regulations in effect in a Missouri prison: a
ban on correspondence between incarcerated people and a rule prohibiting prisoners from marrying without the warden’s permission.63 The
question before the Court was the standard of review under which
courts should decide constitutional challenges to regulations of this sort.
For people outside of prison, both speech and marriage are considered
fundamental constitutional rights. The unique and challenging nature
of the prison environment may in some cases warrant greater scope for
regulations burdening such rights than in society at large. Yet, given
that in the prison context, these fundamental rights could in many instances be vindicated to a considerable degree without compromising
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
60 See Dolovich, Evading the Eighth Amendment, supra note 35, at 137 (tracing the way the
Court’s Eighth Amendment doctrine operates to shift judicial attention “away from the conditions
themselves and toward what defendants did or did not know about the risk of harm to prisoners”).
61 See infra note 88.
62 See Driver & Kaufman, supra note 1, at 523.
63 See id. at 535–36 (discussing the factual background of Turner v. Safley, 482 U.S. 78 (1987)).

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significant state interests, one might readily imagine a standard of
review that put some appreciable burden on prison officials to justify
regulations hindering their exercise. But in Turner, the Court opted for
a different approach, holding that prison regulations that undermine
prisoners’ constitutional rights will nonetheless be upheld if they are
“reasonably related to legitimate penological interests.”64
The four factors the Turner Court specified for determining whether
the state has met this burden betray a strikingly pro-state slant for a
standard that, it bears repeating, is intended for use in determining
whether state officials have violated fundamental rights. In such cases,
per Turner, courts must ask (1) whether there is a “‘valid, rational connection’ between the prison regulation and the legitimate governmental
interest put forward to justify it”;65 (2) whether there are “alternative
means of exercising the right that remain open to prison inmates”;66
(3) what “impact accommodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation of prison resources generally”;67 and (4) whether there are “ready alternatives”68 by
which prison officials can realize their interests while also affording prisoners the exercise of their rights.69 Turner’s elaboration of each factor
leaves no doubt that the test is intended to be extremely deferential to
prison officials. The Court explained (1) that “a regulation cannot be
sustained where the logical connection between the regulation and the
asserted goal is so remote as to render the policy arbitrary or irrational”;70 (2) that “[w]here ‘other avenues’ remain available for the exercise of the asserted right, courts should be particularly conscious of the
‘measure of judicial deference owed to corrections officials’”;71 (3) that
“[i]n the necessarily closed environment of the correctional institution,
few changes will have no ramifications on the liberty of others or on the
use of the prison’s limited resources”;72 and (4) that if a “claimant can
point to an alternative that fully accommodates the prisoner’s rights at
de minimis cost to valid penological interests, a court may consider that
as evidence that the regulation does not satisfy the reasonable relationship standard.”73 In short, having explicitly directed lower courts to be
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
64 Turner, 482 U.S. at 89. This discussion of Turner is drawn in part from Dolovich, supra note
34, at 246.
65 Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
66 Id. at 90.
67 Id.
68 Id.
69 Id.; see id. at 90–91.
70 Id. at 89–90.
71 Id. at 90 (citation omitted) (quoting Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119,
131 (1977); Pell v. Procunier, 417 U.S. 817, 827 (1974)).
72 Id.
73 Id. at 91 (emphasis added).

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deferential in assessing alternatives74 (factor two) and having stipulated
that any change to a prison regime will necessarily have ramifications
for the institution (factor three), the Turner Court made clear that, unless
the challenged policy is found to be an “arbitrary or irrational”75 method
for the state to achieve its stated goals (factor one) and claimants can
identify an alternative means to fully accommodate their rights without
any appreciable cost to the prison (factor four), the challenged regulation
is to be presumed constitutional. Sure enough, it is a rare case decided
under Turner in which the plaintiff ultimately prevails.
Turner, with its pro-state bent, has migrated well beyond cases involving First Amendment speech rights and the Fourteenth Amendment
right to marry to become, as Driver and Kaufman put it, the “default
standard for reviewing constitutional challenges to prison policy.”76
Since Turner was decided, the Court has applied this standard to cases
involving First Amendment expression,77 association,78 and free exercise,79 the Fifth Amendment right against self-incrimination,80 the
Fourteenth Amendment right against being involuntarily medicated,81
and even the due process right of access to the courts.82 The impact of
Turner on the scope of prisoners’ constitutional claims cannot be overstated; according to David Shapiro, as of 2016 Turner had been cited in
judicial decisions more than 8000 times.83
The application of Turner should not automatically foreclose plaintiffs’ success. To be sure, the plaintiffs’ burden is extremely high. Yet,
as Shapiro has documented, there is seemingly no end to the prison policies burdening prisoners’ constitutional rights, and many such policies
are hard to justify on any plausible account of the state’s legitimate interests.84 When the state has no good reason for compromising such
core constitutional rights as freedom of speech and expression, religious
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
74 In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court emphasized that, to satisfy Turner’s
second factor, “[a]lternatives . . . need not be ideal, . . . they need only be available.” Id. at 135.
75 Turner, 482 U.S. at 90.
76 Driver & Kaufman, supra note 1, at 536.
77 See, e.g., Beard v. Banks, 548 U.S. 521, 528 (2006) (plurality opinion); Thornburgh v. Abbott,
490 U.S. 401, 414 (1989).
78 See, e.g., Overton, 539 U.S. at 131–32.
79 See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987), superseded by statute,
Religious Freedom Restoration Act of 1993 (RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (codified
as amended at 42 U.S.C. §§ 2000b to 2000bb-4).
80 See, e.g., McKune v. Lile, 536 U.S. 24, 37 (2002) (plurality opinion).
81 See, e.g., Washington v. Harper, 494 U.S. 210, 223 (1990).
82 See Lewis v. Casey, 518 U.S. 343, 361–63 (1996); see also id. at 367 (Thomas, J., concurring).
83 See David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84
GEO. WASH. L. REV. 972, 975 (2016).
84 For a detailed set of examples, including my personal favorite — the removal of a map of the
planets from the wall of a New York state prison library pursuant to a policy prohibiting all maps
in case “they may prove useful to prisoners who manage to escape,” id. at 997 — see id. at
988–1005.

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freedom, or due process, courts should as a matter of course strike down
the offending policy or practice and restore the plaintiffs’ access to the
enjoyment of these basic constitutional entitlements. In the prison context, however, honoring this imperative would require courts to recognize and affirm the value in enabling people in custody to exercise the
civil liberties that the Bill of Rights is designed to protect — the right to
read, debate, worship, interact with others, and even play games85 as
one chooses without undue state interference. Instead, under Turner,
courts hearing cases implicating these basic freedoms may — and often
do — side with defendant prison officials on the flimsiest of grounds,
however compelling the plaintiffs’ evidence and logically sound their
arguments. In the vast majority of such cases, the personal toll this
judicial posture inflicts on affected prisoners scarcely registers.
Turner’s deployment of the canons of evasion, and especially its extreme deference, facilitates such outcomes. Still, the fact that defendants
so often win on Turner even when challenged regulations are seemingly
impossible to defend on the merits suggests that defendants are benefiting from something more than favorable doctrinal standards.86 As Part
II will shortly show, that something more is the morally dissonant orientation that the federal courts have come to adopt toward the parties
in prison law cases.87
Not every legal claim raised by incarcerated plaintiffs is covered by
Turner or the Eighth Amendment.88 And in some instances, the Court’s
decisions run decidedly in plaintiffs’ favor. Here, two cases are
especially notable. In Johnson v. California,89 the Court held that prison
policies that facially discriminate based on race must satisfy, not Turner
(for which defendants had advocated), but strict scrutiny.90 And
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 See Singer v. Raemisch, 593 F.3d 529 (7th Cir. 2010) (upholding Wisconsin prison’s ban on
the playing of Dungeons and Dragons). For more on Singer v. Raemisch, 593 F.3d 529, see infra
section II.C.2, p. 327.
86 See infra section II.B, pp. 319–25.
87 See infra Part II, pp. 316–32 (excavating the dispositional favoritism pervasive in prison law
cases).
88 See, e.g., Johnson v. California, 543 U.S. 499, 509 (2005) (holding that race-based equal protection claims brought from prison are subject not to Turner, but to strict scrutiny); Wilkinson v.
Austin, 545 U.S. 209, 224 (2005) (applying procedural due process principles to transfers into solitary
confinement and finding such principles afford some minimal procedural due process protections);
Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (same with respect to disciplinary hearings). Under
the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc
to 2000cc-5, state prison policies burdening religious practice are subject to strict scrutiny; RFRA
provides the same degree of statutory protection to the free exercise rights of federal prisoners.
Procedural claims arising under the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-132,
110 Stat. 1214 (1996) (codified as amended in scattered sections of the U.S. Code), have generated
their own governing doctrine. See, e.g., Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020); Ross
v. Blake, 578 U.S. 632, 635 (2016); Jones v. Bock, 549 U.S. 199, 202–03 (2007); Woodford v. Ngo,
548 U.S. 81, 93 (2006); Booth v. Churner, 532 U.S. 731, 734 (2001).
89 543 U.S. 499 (2005).
90 Id. at 513 (“Turner is too lenient a standard to ferret out invidious uses of race.”).

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in Brown v. Plata,91 a five–four opinion written by Justice Kennedy, the
Court upheld a Ninth Circuit three-judge panel order directing the
California Department of Corrections and Rehabilitation (CDCR) to reduce the population density of its facilities to 137.5% of rated capacity.92
This decision, which turned on the three-judge panel’s application of a
key provision of the Prison Litigation Reform Act93 (PLRA),94 obliged
the CDCR to release or find alternative housing for 46,000 people then
in California state prison.95
But these cases were each exceptional in their own way. Johnson
involved self-conscious race discrimination by government officials,
thus giving those Justices concerned that the Court take a position opposed to state-sponsored racism a strong reason in that instance to side
with the plaintiffs and against prison officials. Johnson therefore is best
understood independently of the dynamics that more typically shape
prison law cases. Plata, meanwhile, represents a different kind of exception: a highly consequential case, directly implicating the scope of
state authority to run the prisons free of judicial interference, in which
the Court, resisting resort to the canons of evasion, weighed the evidence
impartially and put the state to its proof.96 Plata offers a glimpse of
what prison law could be were the Court not inclined to tilt the playing
field so strongly in defendants’ favor — that is, a site of good faith legal
analysis that takes seriously all the evidence and arguments in the record
without automatically overcrediting defendants’ submissions or discounting those of plaintiffs.97
Yet Plata is also exceptional in another sense: the extreme nature of
the suffering and injury produced by carceral conditions so plainly unconstitutional that the violation — in this case, grossly inadequate medical and mental health care in a chronically overcrowded prison
system — was in large part stipulated to by the defendants themselves.98
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
91
92
93

563 U.S. 493 (2011).
Id. at 539.
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of the
U.S. Code).
94 See Plata, 563 U.S. at 502.
95 See id. at 501; see also Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts,
and Politics, 48 HARV. C.R.-C.L. L. REV. 165, 183 (2013); Robert Weisberg & Joan Petersilia, The
Dangers of Pyrrhic Victories Against Mass Incarceration, DAEDALUS, Summer 2010, at 124, 125.
96 See Dolovich, supra note 34, at 250–52.
97 For another (rare) example of such evenhandedness on the part of the Supreme Court, see
Cleavinger v. Saxner, 474 U.S. 193 (1985), in which the Court rebuffed efforts by defendant prison
officials to assert absolute immunity for actions taken in their capacity as hearing officers in prison
disciplinary matters, in part because, contrary to defendants’ representations, COs serving as hearing officers feel pressure to credit the testimony of fellow COs over that of prisoners, thus compromising the impartiality necessary for a fair process, id. at 204; see also Dolovich, supra note 34, at
252–53, 252 n.134.
98 See Plata, 543 U.S. at 532.

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The case also dragged on for decades without implementation of an adequate remedy.99 Plata thus serves to mark the outer limits of prison
law’s pro-state tilt: where the challenged treatment is glaringly indefensible, where dedicated and adept plaintiffs’ lawyers are willing to build
the strongest possible case for their clients,100 and where courts are open
to taking plaintiffs’ claims seriously, prisoners may sometimes prevail.101
But Plata is an outlier. Ordinarily, it is the pro-state skew, evident in
the Court’s opinions regardless of the merits of the cases, that is normative for this context.
II. DECIDING THE CASES: DISPOSITIONAL FAVORITISM
A. Manifestations of Judicial Deference
As was noted above, starting in 1974, the Supreme Court began to
expand the list of constitutional claims available to people in prison.102
Yet even while the Court was taking steps to open up the federal courts
to the incarcerated, it insisted in almost every case on the need for judicial deference to prison officials.103
As Part I has shown, the Court’s commitment to this deferential posture helped shape the substantive standards governing the vast majority
of prisoners’ constitutional claims. There are, however, other ways the
Court’s determination to defer manifests in the cases. Two additional
deferential moves, once flagged, become easy to spot: the framing of
relevant facts in ways favorable to the state, and the altering of procedural rules to the same end.104 In this Part, I show the way these moves
have played out in the Court’s prison law opinions. But these additional
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
99 In the majority opinion in Plata, Justice Kennedy rehearsed in detail some of the many disturbing facts of the case, including that, due to “a shortage of treatment beds, suicidal inmates may
be held for prolonged periods in telephone-booth sized cages without toilets,” id. at 503; that one
such individual, having “been held in such a cage for nearly 24 hours,” was found “standing in a
pool of his own urine, unresponsive and nearly catatonic” because prison officials had “no place to
put him,” id. at 504; and that, due to lack of space, “up to 50 sick inmates may be held together in
a 12- by 20-foot cage for up to five hours awaiting treatment,” id. Justice Kennedy also found that,
although the three-judge panel’s order to reduce the prison population was “of unprecedented sweep
and extent,” the “medical and mental health care provided by California’s prisons” had “[f]or
years . . . fallen short of minimum constitutional requirements” and that “[e]fforts to remedy the
violation ha[d] been frustrated by severe overcrowding.” Id. at 501.
100 In Plata — a consolidation of Plata and Coleman — class members were represented by Don
Specter and his colleagues at the Prison Law Office (Plata), and Michael Bien, Ernest Galvan, Jane
Kahn, and their colleagues at what was then Rosen Bien & Galvan LLP (Coleman), making the
plaintiffs’ advocates among the most experienced and expert in the field.
101 As to this last factor, Justice Kennedy’s late-career recognition of the failure of American
carceral policy and the moral wrong it represents was plainly a key determinate of the way Plata,
decided five–four, came out. See Anthony M. Kennedy, Assoc. Just., Sup. Ct. of the U.S., Speech
at the American Bar Association Annual Meeting (Aug. 14, 2003), https://www.supremecourt.gov/
publicinfo/speeches/sp_08-09-03.html [https://perma.cc/3DNZ-ARXC].
102 See supra p. 306.
103 Dolovich, supra note 34, at 253.
104 Id. at 246–49.

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forms of deference must be understood as operating in concert with a
further, more subtle manifestation of the Court’s normative commitments — one that, although less tangible and thus harder to pin down,
is as consequential in shaping outcomes as the evasive moves described
in Part I. I am speaking here of the general normative orientation with
which, in its prison law cases, the Court approaches the parties’ submissions and even the parties themselves — an orientation that can best be
described as a readiness to look upon prison officials and their evidence
and arguments with favor and sympathy, while regarding incarcerated
litigants and their evidence and arguments with skepticism and even
hostility.
Reframing facts and altering procedural rules is only part of it. This
orientation — call it dispositional favoritism — can also produce judicial reasoning that, among other things, automatically presumes good
faith and expertise on the part of defendant prison officials, views prisoners in general with suspicion, and scarcely considers the real-life
impact of case outcomes on the actual human beings who live behind
bars. This normative posture generates a marked judicial elevation of
defendants’ experience, perspectives, and interests, and a systematic devaluation of the plaintiffs’ experience, perspectives, and interests, not to
mention their rights to basic liberties and a safe environment. The effect
of such dispositional favoritism is a host of subtle findings and adjustments in whatever case is at hand, virtually all tilting in defendants’
favor. Unsurprisingly, when the Court adopts this posture, defendants
generally win.
Space does not permit me to demonstrate the full reach of dispositional favoritism in prison law; the case law is too vast and varied to
allow for a comprehensive analysis. My goals in this Part are more
modest: to show how the Supreme Court has, through the force of its
example, rendered dispositional favoritism broadly normative for prison
law cases (section II.B), and to identify instances of dispositional favoritism in action in the lower federal courts (section II.C). In terms of
federal court opinions, I am especially interested in those cases in which
plaintiffs’ claims seem impossible to dispute and yet the court nonetheless sides with the state. These cases, with their puzzling logic and signs
of flat-out judicial refusal to credit evidence that favors the plaintiffs,
most effectively illustrate both the normativity of dispositional favoritism for prison law and the extent of the power it confers on prison officials in their interactions with prisoners. That such opinions can be
issued at all — with (as it were) a judicial straight face — is proof
enough that the usual judicial norms of impartiality and critical analysis
do not govern here. Additional proof of the normativity of this inversion
is found in the fact that even cases of this order are not generally greeted
by incarcerated litigants and their advocates with shock or confusion.
Instead, they tend merely to be met with resignation and a sense of frustrated disappointment that the court in question chose the path of least

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resistance rather than taking plaintiffs’ claims seriously and putting the
state to its proof.
One hallmark of dispositional favoritism turns out to be the absence
of the usual written indicators that a court has scrutinized and assessed
the evidence presented. In the ordinary course, the unspoken expectation is that judges will approach each case with an open mind, prepared
to hear and assess the arguments on the merits and deal with all litigants
fairly and with respect. Such evenhandedness would not require uncritical acceptance of parties’ claims; on the contrary, judges are expected
to critically examine all legal submissions and to assess the quality
of the arguments. Signs of such reasoning are regularly sprinkled
throughout judicial opinions, with courts observing that one party
or other has “failed to show that” or “failed to meet its burden to” or
“offered no sound reason why” or the like. Typically, phrases of this sort
are so commonplace as to be largely invisible, indicating only that the
court has fulfilled its baseline obligation of analyzing the evidence
in light of extant legal standards. Yet in prison law cases, the absence
of such indicia of judicial scrutiny — at least as directed toward the
defendants’ evidence and arguments — is entirely normative, such
that opinions finding for defendants with only cursory or conclusory
analyses are unsurprising. Rather, it is the presence of such otherwise
ordinary locutions that, when directed against defendant prison officials,
seems to call out for explanation.105 The matter to be resolved in such
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
105 One does occasionally see the Supreme Court deploying such indicia of judicial scrutiny in
favor of incarcerated litigants. See, e.g., Holt v. Hobbs, 574 U.S. 352, 356, 365, 367 (2015) (“[T]he
Department has failed to show,” id. at 365; “[t]he Department failed to establish,” id.; “[i]t has offered no sound reason why,” id. at 367; “the Department failed to show, in the face of petitioner’s
evidence,” id. at 367); Turner v. Safley, 482 U.S. 78, 98 (1987) (“We are aware of no place in the
record where prison officials testified that”; “petitioners have pointed to nothing in the record suggesting”; “[c]ommon sense likewise suggests”); Procunier v. Martinez, 416 U.S. 396, 415–16 (1974)
(“Appellants have failed to show,” id. at 415; “[a]ppellants contend that . . . . [b]ut they do not suggest how . . . nor do they specify what,” id. at 416), overruled in part by Thornburgh v. Abbott, 490
U.S. 401 (1989). But each of these instances is unique in a way that helps explain the Court’s
willingness to put the state to its proof. In Martinez, the first case in which the Supreme Court
entertained a First Amendment freedom of expression claim brought by prisoners, the Court focused primarily on the First Amendment rights of non-incarcerated people wishing to correspond
with people in custody. See Martinez, 416 U.S at 409 (“The wife of a prison inmate who is not
permitted to read all that her husband wanted to say to her has suffered an abridgment of her
interest in communicating with him as plain as that which results from censorship of her letter to
him.”). In Turner, after establishing a strikingly defendant-friendly standard of review for prisoners’
constitutional claims, see supra pp. 311–14, the Court upheld without difficulty a regulation prohibiting people in Missouri prisons from writing to one another. But the case also considered a
prohibition on prisoners’ marrying without the warden’s permission, and Justice O’Connor, who
wrote for the majority, seemed to take particular umbrage at the gendered paternalism of a rule
that had only ever been applied to women. Her analysis of that regulation under the new Turner
standard reflected a consequent unwillingness simply to defer to prison officials’ characterization
of the matter. As for Holt v. Hobbs, 574 U.S. 352 (2015), I discuss that case in some detail below.
See infra section II.C.3, pp. 327–28.

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instances is why the Supreme Court (or an appellate or district court, as
the case may be) here opted to fulfill the standard judicial obligation to
critically evaluate the quality of defendants’ evidence.
B. Dispositional Favoritism in the Supreme Court
In this section, I map the way the Supreme Court models the dispositional favoritism with which federal courts approach prison law cases.
The Court’s own disposition to favor prison officials will often go beyond
the crafting of defendant-friendly doctrinal standards.106 One manifestation of this inclination is emphasized by Driver and Kaufman: the “selective empiricism” through which the Court commits to factual claims
about prisons and prison life that may directly conflict with claims made
in other of its prison cases.107 The impression created is that of a judicial
body determined to subscribe to whatever factual account will best support defendants’ characterization of the issues.108 But inter-case contradiction is only one of several ways the Court’s approach to facts in its
prison law cases — whether the facts on the record or those concerning
the world in general — reflects its determination to favor the state.
In Rhodes v. Chapman,109 for example,110 the majority opinion set a
standard for determining when prison overcrowding constitutes an
Eighth Amendment violation — and then held that the plaintiffs in
that case did not meet this standard, while failing even to acknowledge
the considerable evidence in the record suggesting otherwise.111
In Lewis v. Casey,112 which dramatically narrowed the scope of prisoners’ due process right of access to the courts, the Court implicitly endorsed an account of what it takes to adequately litigate a legal claim
that is wholly at odds with what any minimally competent lawyer (much
less a Supreme Court Justice) knows to be true.113 Then there is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
106
107
108

See supra Part I, pp. 305–16.
See Driver & Kaufman, supra note 1, at 567.
See id. at 568 (observing that, in the Court’s prison law opinions, “claims about penal institutions tend to shift in ways that benefit the government”).
109 452 U.S. 337 (1981).
110 The examples in this paragraph are drawn from Dolovich, supra note 34, at 248–49.
111 In Rhodes, the Court rejected an Eighth Amendment challenge to the practice of doublecelling (that is, housing two men in sixty-three-square-foot cells originally intended for one person)
on the ground that the double-celling did not “create other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348. Yet the “conclusion of every expert who testified at trial” was that
“a long-term inmate must have to himself” a minimum of fifty square feet of floor space “in order
to avoid serious mental, emotional, and physical deterioration,” id. at 371 (Marshall, J., dissenting);
see also id. at 371 n.4 (listing studies reaching the same conclusion). And after accounting for the
bed alone, even “without making allowance for any other furniture in the room” (toilet, sink, locker,
shelves, and so forth), the remaining square footage per person was approximately “20–24 square
feet, an area about the size of a typical door,” id. at 371 n.3.
112 518 U.S. 343 (1996).
113 In the controlling opinion in Casey, Justice Scalia maintained that prisoners’ right of access
to the courts entails only the right to “bring to court a grievance that the inmate wished to present.”

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Whitley, in which the procedural posture — an appeal from a directed
verdict — required the Court to take the facts in the light most favorable
to the plaintiff, Gerald Albers.114 Instead, in the majority opinion,
Justice O’Connor adopted the state’s rendition of the facts — even
though, as Justice Marshall pointed out in dissent, the record showed
that Albers “bitterly disputed” the state’s characterization.115 It is no
revelation that, in judicial hands, facts may be malleable. The point
here is that whatever factual frame the Court adopts in its prison law
cases always seems, as Driver and Kaufman put it, “to shift in ways that
benefit the government.”116
The Court’s disregard of Whitley’s procedural posture indicates yet
another way the Court’s inclination to advantage prison officials manifests in this arena: through the recasting of procedural rules in ways that
benefit defendants at plaintiffs’ expense. One sees this move in Beard
v. Banks,117 in which the Court seemed to rewrite the rules of summary
judgment to make it easier in prison cases for defendants to prevail.118
Ordinarily, to succeed on summary judgment, defendants bear the burden of demonstrating that no genuine issue of material fact remains to
be decided. If instead the plaintiffs’ evidence would allow a jury to
decide in their favor, it would be inappropriate to deprive plaintiffs
of the chance to make their case. In Banks, the facts strongly suggested
the existence of open factual issues for trial. The case involved a ban
on the possession of newspapers, magazines, and personal photographs by people housed in level two of the Long Term Segregation
Unit (LTSU-2), the most restrictive housing unit in Pennsylvania’s
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Id. at 354. Yet, as the Court had recognized in the prior case of Bounds v. Smith, 430 U.S. 817
(1977), “[i]t would verge on incompetence for a lawyer to file an initial pleading without researching
such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties, [and so
forth] . . . .” Id. at 825. Moreover, as Justice Scalia was surely well aware, the state’s response to
any pro se pleading “will undoubtedly contain seemingly authoritative citations,” and “[w]ithout a
library, [an incarcerated litigant] will be unable to rebut the State’s argument,” rendering the due
process right of access to the courts largely empty. Id. at 826.
114 See Whitley v. Albers, 475 U.S. 312, 322 (1986).
115 Id. at 331 (Marshall, J., dissenting). Writing for the Whitley majority, Justice O’Connor emphasized that, at the time of the shooting, a riot was in progress, “a guard was still held hostage,”
id. at 322 (majority opinion), and “[t]he situation remained dangerous and volatile,” id. at 323. Yet
as Justice Marshall noted in dissent, Albers had presented “substantial testimony” at trial to show
that by the time the officer shot him, “the disturbance had subsided.” Id. at 330 (Marshall, J.,
dissenting); see also id. at 331 (“Although the Court sees fit to emphasize repeatedly ‘the risks to the
life of the hostage and the safety of inmates . . .,’ I can only point out that respondent bitterly disputed that any such risk to guards or inmates had persisted. The Court just does not believe his
story.” (quoting id. at 323 (majority opinion))).
116 Driver & Kaufman, supra note 1, at 567.
117 548 U.S. 521 (2006) (plurality opinion).
118 This discussion of Banks is drawn in part from Dolovich, supra note 34, at 247–48. For yet
another example of the Court altering procedural rules in prison law cases to benefit defendants at
plaintiffs’ expense, see id. at 246–47 (discussing Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S.
119 (1977)).

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prisons.119 The plaintiffs brought a First Amendment challenge, and
the defendants sought summary judgment.120 Under Turner, the first
factor is paramount: unless plaintiffs can show that no valid rational
connection existed between the challenged regulation and the state’s
“asserted goal,” the court will generally find for defendants.121 Thus, in
cases governed by Turner, the primary question the court must decide
at summary judgment is whether a genuine issue of material fact remains as to the existence of such a connection.
In Banks, there seemed to be more than sufficient evidence to allow
the plaintiffs to make this showing. The state had justified the challenged restrictions by the need to “incentiv[ize]” LTSU-2 residents “to
move to”122 level one of the Long Term Segregation Unit (LTSU-1) and
to minimize the amount of material in their cells, which might otherwise
serve to hide contraband, be fashioned into weapons, catapult human
waste, or be used “as tinder for cell fires.”123 Yet as the record showed,
LTSU-1 residents already had many other privileges LTSU-2 residents
lacked, thus providing plenty of incentive for good behavior beyond the
few additional items plaintiffs were requesting.124 Moreover, at least
one of the items plaintiffs sought — photographs — was also prohibited
in LTSU-1, so that a desire for photographs could not possibly incentivize LTSU-2 residents to try to get to LTSU-1.125 And equally telling,
LTSU-2 residents were already entitled to have many items in their cells
that could in theory create the sorts of problems that had supposedly
motivated the ban.126 This last fact in particular seemed to make refusal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
119
120
121

Banks, 548 U.S. at 524–25.
Id. at 527.
See, e.g., Overton v. Bazzetta, 539 U.S. 126, 133–36 (2003) (focusing on the first Turner factor
for each challenged regulation, with only glancing reference to the remaining three factors).
122 Banks, 548 U.S. at 531. LTSU-1 was the next-most restrictive unit, to which people in
LTSU-2 stepped down en route to being released to the prison’s general population. See id. at 526.
123 Id.
124 See id. at 549 (Stevens, J., dissenting) (“Although conditions in LTSU-1 are also harsh” in
several respects unrelated to the litigation, “they are far more appealing than the conditions in
LTSU-2.”).
125 See id. (noting that although those “who ‘graduate’ out of the LTSU-1 and back into the
general prison population do regain their right to possess personal photographs, . . . they also regain
so many additional privileges . . . that it strains credulity to believe that the possibility of regaining
the right to possess personal photographs if they eventually return to the general prison population
would have any marginal effect on the actions of prisoners in LTSU-2”).
126 As Justice Stevens further noted in dissent:
[E]ach [LTSU-2] inmate is given a jumpsuit, a blanket, two bedsheets, a pillow case, a roll
of toilet paper, a copy of a prison handbook, ten sheets of writing paper, several envelopes,
carbon paper, three pairs of socks, three undershorts and three undershirts, and may at
any point also have religious newspapers, legal periodicals, a prison library book,
Bibles, and a lunch tray with a plate and a cup. Many of these items are flammable, could
be used [to start fires, catapult feces, or to create other dangers] as effectively as a newspaper, magazine or photograph, and have been so used by [LTSU-2] inmates.
Id. at 543–44 (alteration in original) (quoting Banks v. Beard, 399 F.3d 134, 143 (3d Cir. 2005)).

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of plaintiffs’ request to have “one newspaper or magazine and some
small number of photographs in their cells at one time” both unaccountable and arbitrary.127
On these grounds, the Third Circuit sided with the plaintiffs, but the
Supreme Court reversed. Justice Breyer, writing for the plurality,
acknowledged that on review of summary judgment, courts must ordinarily draw “all justifiable inferences” in favor of the nonmoving party
(in this case, plaintiffs Banks et al.).128 However, in cases brought by
prisoners, a distinction must be drawn between “evidence of disputed
facts and disputed matters of professional judgment.”129 That is, when
defendants’ proffered justifications represent their professional judgment, courts “must accord deference to the views of prison authorities.”130 And here, Justice Breyer found, the Third Circuit had “placed
too high an evidentiary burden” on the defendant and accorded “too
little deference to the judgment of prison officials” — for example, by
“offer[ing] no apparent deference to the deputy prison superintendent’s
professional judgment that the Policy deprived ‘particularly difficult’
[prisoners] of a last remaining privilege and that doing so created a significant behavioral incentive.”131
Assessing the record, the Third Circuit had found no evidence that
the state’s “deprivation theory of behavior modification had any basis
in real human psychology, or had proven effective with LTSU [residents].”132 Yet this lack of evidentiary support did not appear to trouble
the Supreme Court, nor did the fact that the case plainly offered several
other triable issues of material fact. Indeed, the Banks Court seemed
simply to ignore any evidence tending to support Banks’s position and
to elevate any assertions by the defendant, however unsupported by the
facts, to the status of truth. As Justice Ginsburg succinctly put it in her
dissent, the Court “effectively [told] prison officials they will succeed in
cases of this order, and swiftly, while barely trying. It suffices for them
to say, in our professional judgment the restriction is warranted.”133
In Banks, the Court made use of both additional forms of deference
identified here, recasting the facts and rewriting procedural rules in the
defendant’s favor. But the deference displayed in Banks went beyond a
pro-state move or two. It instead revealed what can only be described
as an overall normative posture in favor of the state, one manifested in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
127
128

Id. at 544 (quoting Banks, 399 F.3d. at 144).
Id. at 529 (plurality opinion) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
129 Id. at 530.
130 Id. (citing Overton v. Bazzetta, 539 U.S. 126, 132 (2003)).
131 Id. at 535.
132 Id. (quoting Banks, 399 F.3d at 142).
133 Id. at 556 (Ginsburg, J., dissenting). After Banks, as Lisa Kerr aptly puts it, even on summary
judgment, “[s]o long as the subject matter of a case concerns the judgment of prison administrators,
then in almost no circumstance will the prisoner succeed.” Lisa Kerr, Contesting Expertise in Prison
Law, 60 MCGILL L.J. 43, 71 (2014).

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innumerable subtle ways. Consider that in Banks alone, the Court: ignored logical flaws in the state’s case; chastised the Third Circuit for
evenhandedly weighing the evidence of the parties; rewrote the summary judgment rule to reduce the government’s burden in prison cases;
and established what amounted to an irrebuttable presumption as to the
validity of prison officials’ testimonial evidence. In addition, as with
each of the Court’s prison law cases explored here, Banks gave no hint
of ever having considered, much less factored into its analysis, either
what day-to-day life was like for the plaintiffs or that its holding would
only further immiserate people who already lived under conditions of
extreme deprivation. Yet in virtually all its prison law opinions, Banks
included,134 the Court has included language underscoring the challenges prison officials face on a daily basis and the need for courts to
avoid decisions that might inadvertently make their jobs more difficult.
To treat these various features of Banks as separate and distinct
would be to miss what becomes unmistakable when they are viewed in
concert: the distinct normative cast to the Court’s divergent inclinations
toward the parties in prison law cases, which has led the Court to routinely elevate the perspectives and experience of prison officials and to
devalue the legal claims and lived experience of people in prison. This
dispositional favoritism emerges clearly in the opinions themselves, with
the Court approaching defendant prison officials and their evidence and
arguments with sympathy, and incarcerated plaintiffs and their evidence
and arguments with skepticism and even hostility. In case after case,
the Court has found new ways to expand the power of prison officials
over the incarcerated and to correspondingly shrink the scope of the
constitutional protections prisoners can hope to receive.
It bears emphasizing just how directly this dynamic shapes
the prison environment and, in particular, the degree of unchecked
power that prison officials may exercise over prisoners.135 In Overton
v. Bazzetta136 and again in Banks, the Court gave its imprimatur

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
134
135

See, e.g., Banks, 548 U.S. at 525–26, 533 (plurality opinion).
In this way, the Court’s dispositional favoritism manifests what Robert Cover famously described as the law’s violence. See Robert M. Cover, Essay, Violence and the Word, 95 YALE L.J.
1601, 1601 (1986) (“Legal interpretation takes place in a field of pain and death. . . . A judge articulates her understanding of a text, and . . . leave[s] behind victims whose lives have been torn apart
by . . . organized, social practices of violence.” (footnote omitted)); Robert M. Cover, The Bonds of
Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 GA. L. REV. 815, 818 (1986)
(“Even the violence of weak judges is utterly real . . . . Take a short trip to your local prison
and see.”).
136 539 U.S. 126 (2003).

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to what Justice Stevens called “the deprivation theory of rehabilitation.”137 On this approach — which, as Justice Stevens observed, “has
no limiting principle”138 — even clear constitutional rights may be suspended if prison officials assert that doing so will motivate good behavior.139 In Casey, the Court dramatically narrowed prisoners’ right of
access to the courts, effectively broadening the zone in which prison
officials may act without fear of judicial censure.140 In Whitley, the
Court established such a high standard for Eighth Amendment excessive force claims that COs may in all but the most extreme cases use
violence with impunity.141 And in Woodford v. Ngo,142 the Court held
that the PLRA143 required “proper exhaustion,” meaning that prisoners
seeking to bring their constitutional claims in federal court must first
comply with “all steps that the [prison] holds out, and do[] so
properly.”144 Among other things, Woodford’s effect has been to convert
the short filing deadlines of prison grievance procedures — as short as
thirteen days in many places145 and in several states no more than three
to five days146 — into effective statutes of limitations on civil rights
claims for incarcerated plaintiffs.147 In this way, Woodford ensures that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
137 Banks, 548 U.S. at 546 (Stevens, J., dissenting); see also Overton, 539 U.S. at 137 (Stevens, J.,
concurring) (“Michigan, like many other States, uses withdrawal of visitation privileges for a limited
period as a regular means of effecting prison discipline.”).
138 Banks, 548 U.S. at 546 (Stevens, J., dissenting).
139 See id. (observing that this justification “would provide a ‘rational basis’ for any regulation
that deprives a prisoner of a constitutional right [if] there is at least a theoretical possibility that the
prisoner can regain the right at some future time by modifying his behavior” (citing Kimberlin v.
U.S. Dep’t of Just., 318 F.3d 228, 240 (D.C. Cir. 2003) (Tatel, J., concurring in part and dissenting
in part))).
140 See Lewis v. Casey, 518 U.S. 343, 351–55 (1996).
141 See Whitley v. Albers, 475 U.S. 312, 319 (1986).
142 548 U.S. 81 (2006).
143 See 42 U.S.C. § 1997e.
144 Woodford, 548 U.S. at 90 (emphasis omitted) (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)).
145 See Giovanna Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive
Power: Interpreting the Prison Litigation Reform Act (PLRA), 29 CARDOZO L. REV. 291, 317
(2007).
146 See, e.g., KY. ADMIN. REGS. 14.6 at 8 (2021), https://corrections.ky.gov/About/cpp/Documents/
14/CPP%2014.6%20-%20Grievance%20-%20Effective%207-20-2021.pdf [https://perma.cc/MMZ29L4B] (five days); MONT. STATE PRISON, POLICIES & PROCEDURES: POLICY NO. MSP 3.3.3,
INMATE GRIEVANCE SYSTEM 3 (2005), https://cor.mt.gov/DataStatsContractsPoliciesProcedures/
DataDocumentsandLinks/DOCPolicies/Chapter3/3.3.3-Offender-Grievance-Program.pdf [https://
perma.cc/CL4W-2C6B] (three days); R.I. DEP’T OF CORR., POLICY NO. 13.10-4: INMATE
GRIEVANCE PROCEDURE 7 (2019), https://doc.ri.gov/sites/g/files/xkgbur681/files/documents/
policies/13.10-4-Final-Version.pdf [https://perma.cc/8Q8A-TRVY] (seven days); see also Derek
Borchardt, Note, The Iron Curtain Redrawn Between Prisoners and the Constitution, 43 COLUM.
HUM. RTS. L. REV. 469, 488, 494 & n.136 (2012) (discussing the “very strict time requirements,” id.
at 494, of grievance systems).
147 For more detailed discussion of the impact of Woodford and its progeny on prisoners’ access
to the federal courts, see Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in

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many meritorious constitutional claims will fail long before they get to
court, thereby affording legal impunity even to those COs who have
plainly abused their authority.
It is worth pausing briefly over Woodford. As does the plurality
opinion in Banks, Justice Alito’s majority opinion in Woodford demonstrates a commitment to deference that goes well beyond establishing a
strikingly defendant-friendly standard for PLRA exhaustion. Among
other things, the opinion: displays clear sympathy for prison officials
(assumed to be interested only in providing “a meaningful opportunity
for [the incarcerated] to raise meritorious grievances”);148 evinces hostility toward prisoners (framed as manipulative litigators who, given half
a chance, would “deliberately and flagrantly [bypass] administrative review”);149 writes as if prison grievance processes somehow embody the
due process protections of more typical administrative procedures when
they are in fact “more akin to lodging a complaint with the police” and
almost entirely “lack the procedural protections usually associated with
adversarial litigation”;150 and, as with all the cases canvassed here, never
stops to consider the impact of its holding on those who are imprisoned,
which in this case includes the real possibility that it might leave people
in prison without recourse even for serious abuse or neglect at the hands
of the very state officials charged to keep them safe.
That this opinion was written by Justice Alito, who now finds himself in the midst of a solid conservative majority on the new Roberts
Court, provides some sense of the likely weight its orientation and tone
will carry with the lower federal courts going forward.
C. Dispositional Favoritism in the Federal Courts
Given the marked tilt of substantive prison law doctrine in favor of
the state, not to mention the many procedural obstacles incarcerated
litigants must overcome to get a hearing on the merits,151 it is only to be
expected that defendant prison officials will easily prevail most of the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. PA. J.
CONST. L. 139, 148 (2008); and Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1649–
54 (2003). See generally Borchardt, supra note 146; Giovanna Shay, Exhausted, 24 FED. SENT’G
REP. 287 (2012).
148 Woodford, 548 U.S. at 102.
149 Id. at 97.
150 Shay & Kalb, supra note 145, at 318. As Giovanna Shay and Johanna Kalb explain:
[Prison g]rievance policies never require a prisoner to spell out legal claims, and they often
lack the procedural protections usually associated with adversarial litigation, such as formal discovery mechanisms and evidentiary hearings. . . . They are informal, nonadjudicative proceedings . . . . [In prison], submitting a grievance is more akin to lodging
a complaint with the police than with filing a complaint in court; while a grievance initiates an investigative process, it is not intended to instigate adjudication of legal claims.
Id.
151 See Dolovich, supra note 8, at 114–16.

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time. This means that, in most prison cases, it is unnecessary for a court
to engage in maneuvers at odds with basic norms of judicial reasoning.
Where dispositional favoritism has its sharpest bite is in the adjudication of those claims in which, despite the defendant-friendly legal landscape, incarcerated plaintiffs still ought to succeed. It is here that,
among other otherwise unaccountable moves, one is apt to see courts
accepting legal or factual claims from defendant prison officials that are
at best questionable and at worst “preposterous.”152 Such cases must be
understood not as bizarre aberrations but as the logical extreme of the
normative posture the Court has been adopting — and implicitly and
explicitly directing lower courts to adopt — for decades.
Consider the following:
1. Munson v. Gaetz. — In Munson v. Gaetz,153 plaintiff James
Munson experienced harmful side effects after being prescribed the
wrong medication by prison medical staff.154 Munson sought information on drug interactions and side effects from books in the prison
library, but “long waiting lists and frequent prison lockdowns” impeded
his access.155 He therefore ordered some books on the topic “from a
prison-approved bookstore,” including the Physicians’ Desk Reference
(PDR) and the Complete Guide to Prescription and Nonprescription
Drugs (Complete Guide).156 When the prison’s Publications Review
Officer judged the books to be contraband for their drug-related
content — aside from noting that the books were on the Disapproved
Publications List, the officer wrote only one explanatory word,
“DRUGS,” on the relevant form157 — Munson brought a First
Amendment challenge.158 Although the drugs involved were plainly
medical in nature, and although prisoners in the facility could access the
same information contained in the two banned volumes in the prison’s
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
152 Remarkably, this characterization was used by a federal judge en route to finding for the
state. See Transcript of Hearing on Motion for Temporary Injunction at 106, Holt v. Hobbs, No.
11-cv-00164 (E.D. Ark. Mar. 23, 2011) [hereinafter Transcript of Hearing], aff’d, 509 F. App’x 561
(8th Cir. 2013), rev’d and remanded, 574 U.S. 352 (2015). It is moments like this, which Driver and
Kaufman dub “selective mythmaking,” Driver & Kaufman, supra note 1, at 572, that ground their
claim that prison law is “incoheren[t],” id. at 571. And certainly, at least at this level — when courts
endorse characterizations of prisoners and prison life that defy common sense — incoherence seems
an apt description.
153 673 F.3d 630 (7th Cir. 2012).
154 Id. at 631.
155 Id.
156 Id. at 631–32. As is clear from the table of contents and introductory material, the Complete
Guide concerns only medications that are prescribed by physicians or are available over-the-counter.
For each medication cataloged, the book also warns readers of problematic drug interactions with
alcohol, marijuana, and cocaine. See generally H. WINTER GRIFFITH, COMPLETE GUIDE TO
PRESCRIPTION & NONPRESCRIPTION DRUGS (Stephen W. Moore ed., 2012).
157 Munson, 673 F.3d at 632.
158 Id.

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own library,159 the district court accepted defendants’ position that
prison security required the prohibition. It therefore dismissed the
case for failure to state a claim.160 The Seventh Circuit upheld the
dismissal.161
2. Singer v. Raemisch. — In Singer v. Raemisch,162 prison officials
banned the fantasy role-playing game (RPG) Dungeons and Dragons
(D&D) on the grounds that the game’s “organized, hierarchical [status]”163 promoted “gang . . . activity” and that it undermined players’
“rehabilitation and [the] effects of positive programming.”164 The only
evidence offered by the state was an affidavit from Captain Bruce
Muraski, the prison’s senior gang investigator and one of the codefendants.165 In response, plaintiff Kevin Singer submitted fifteen
affidavits in addition to his own, including eleven from fellow incarcerated D&D players and three from free-world D&D and RPG experts.166
This evidence directly challenged the state’s claims and described in detail the collaborative, prosocial, nonhierarchical, and even rehabilitative
character of D&D gameplay.167 Although the key issue in the case concerned the nature and effect of the game, about which all of Singer’s
witnesses had direct personal knowledge and as to which Muraski had
none, the Seventh Circuit dismissed much of Singer’s evidence as irrelevant because it originated with witnesses whose “experiential ‘expertise’ . . . is from the wrong side of the bars and fails to match Muraski’s
perspective.”168 Consequently, the panel found that no issue of material
fact remained for trial and upheld the district court’s grant of summary
judgment.169
3. Holt v. Hobbs. — In Holt v. Hobbs,170 the plaintiff, Gregory
Holt,171 sought an exception from the grooming standards of the
Arkansas Department of Corrections to grow a half-inch beard for religious reasons.172 Prison officials denied the request, and Holt brought
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
159
160

Id.
Id. (quoting Munson v. Gaetz, No. 10-cv-00881, 2011 WL 692015, at *3 (S.D. Ill. Feb. 17,
2011).
161 Id. at 638.
162 593 F.3d 529 (7th Cir. 2010).
163 Id. at 535.
164 Id. (quoting Captain Bruce Muraski, Waupun’s Disruptive Group Coordinator and Security
Supervisor).
165 Id. at 532.
166 Id. at 533.
167 See id.
168 Id. at 536.
169 See id. at 538.
170 574 U.S. 352 (2015).
171 The plaintiff filed the lawsuit under the name Gregory Holt, but is also known as Abdul
Maalik Muhammad. See id. This essay refers to him as Holt.
172 See id. at 355–56.

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suit under the Religious Land Use and Institutionalized Persons Act of
2000173 (RLUIPA), which established a strict scrutiny standard for any
state prison regulation burdening religious practice.174 Defendant
prison officials justified their refusal of Holt’s request on grounds of
prison security, in particular that such beards could be used to hide or
transport contraband.175 The record of the hearing before the magistrate judge yielded several reasons for skepticism, including that people
in Arkansas prisons are allowed to grow their head hair far longer than
half an inch176 and the obvious fact that they are permitted to wear
clothes and shoes and thus have many more effective hiding places for
contraband than a half-inch beard would afford.177 Holt had been
granted a preliminary injunction and was present at the merits hearing
wearing a half-inch beard. During the hearing, the magistrate judge
observed that “it’s almost preposterous to think that [Holt] could hide
contraband in [his] beard.”178 Yet although the standard of review was
strict scrutiny, the magistrate judge, the district court, and a unanimous
panel of the Eighth Circuit all found for the state and against Holt.179
4. West v. Byers. — In West v. Byers,180 the plaintiff, Christopher
West, brought an Eighth Amendment excessive-force claim arising from
incidents that occurred while he was in administrative segregation.181
In one incident, after West refused to remove his arm from the food slot
during meal distribution, defendant CO Kevin Williams attempted to
physically force West’s arm and shoulder back into the cell, “slammed”
West’s arm several times with the metal door flap, and when West still
did not remove his arm, pepper-sprayed him.182 Subsequently, “an extraction team was assembled” by CO Williams, which forcibly removed
West from his cell.183 West was then placed in a restraint chair and not
permitted a shower to remove the mace.184 At the time of the incident,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
173
174
175
176

42 U.S.C. §§ 2000cc to 2000cc-5.
See Holt, 574 U.S. at 360–62.
Id. at 359.
Arkansas Department of Corrections grooming standards allowed prisoners to grow their hair
to a length just above their ears and just off the collar. Transcript of Hearing, supra note 152, at 58.
177 Holt, 574 U.S. at 359. Defendants also offered a second security-based justification — that
prisoners might shave their beards to facilitate escape — which was equally unpersuasive, since as
Holt observed, to address this problem the Arkansas Department of Corrections could simply take
before-and-after photos as is the practice in New York state prison. Transcript of Hearing, supra
note 152, at 23.
178 Transcript of Hearing, supra note 152, at 106.
179 Holt, 574 U.S. at 360 (citing Holt v. Hobbs, 509 F. App’x 561 (8th Cir. 2013)). The Supreme
Court took the case and reversed. For further discussion, see infra, pp. 329–30.
180 No. 13-cv-3088, 2015 WL 5603316 (D.S.C. Sept. 23, 2015).
181 Id. at *2.
182 Id.
183 Id. at *6.
184 Id. at *2.

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West’s only point of contact with others was through the food slot in an
otherwise solid door, making it hard to see how his refusal to remove
his arm from the slot created any danger to anyone. Yet the district
court found that West’s conduct made force “necessary to restore order”
and thus that CO Williams’s violent actions were not merely “for the
very purpose of causing Plaintiff harm.”185 On these and other grounds,
the district court granted summary judgment to the defendants.186
5. Sixth Circuit Exhaustion Rules. — The PLRA instituted mandatory exhaustion of administrative remedies before people in custody may
file a suit in federal court.187 Following the PLRA’s passage, three district judges in the Sixth Circuit sua sponte created additional procedural
burdens for prisoners, in each case heightening the pleading standards
and making it easier for prison officials to defeat constitutional claims
on exhaustion grounds.188 In each case, the Sixth Circuit endorsed the
rule change, effectively rewriting the circuit’s pleading rules exclusively
for incarcerated plaintiffs189 and increasing the risk that prisoner suits
otherwise entitled to be heard in federal court would be dismissed without a hearing.190
In two of the situations just canvassed — Holt v. Hobbs and that
involving the Sixth Circuit’s creative exhaustion rules — the Supreme
Court intervened and reversed.191 In each instance, the ultimate outcome was plainly correct. The question is how the defendants prevailed
in any of these cases in the first place. In Holt, a unanimous Court
appropriately found the state’s arguments “hard to take seriously.”192
But for that case to have reached the Court, it first had to pass through
three levels of federal court review. And at each stage, the court in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
185
186
187

Id. at *6.
Id. at *18.
42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.”).
188 See Williams v. Overton, 136 F. App’x 859, 862 (6th Cir. 2005), rev’d and remanded sub nom.
Jones v. Bock, 549 U.S. 199 (2007); Jones v. Bock, 135 F. App’x 837, 838 (6th Cir. 2005), rev’d and
remanded, Jones, 549 U.S. 199; Walton v. Bouchard, 136 F. App’x 846, 848 (6th Cir. 2005), rev’d
and remanded sub nom. Jones, 549 U.S. 199.
189 Although exhaustion is typically treated as an affirmative defense, thanks to these new rules,
prisoners in the Sixth Circuit would need to plead exhaustion in the complaint itself or risk dismissal. In addition, although it is normally the practice to dismiss only those claims that have not been
exhausted, courts could dismiss every claim in a multiclaim complaint if the plaintiff had failed to
exhaust even one of the listed claims, and courts in the circuit were empowered to dismiss prisoner
claims if the complaint named defendants that had not been identified by name in the original
internal prison grievance. Walton, 136 F. App’x at 848; Williams, 136 F. App’x at 862.
190 The Supreme Court struck down the three additional rules in Jones, 549 U.S. at 203.
191 See Holt v. Hobbs, 574 U.S. 352, 356 (2015); Jones, 549 U.S. at 199, 203, 224.
192 Holt, 574 U.S. at 363; see also id. at 363–64 (“An item of contraband would have to be very
small indeed to be concealed by a ½-inch beard, and a prisoner seeking to hide an item in such a
short beard would have to find a way to prevent the item from falling out.”).

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question had to consider whether the state’s case satisfied not just rational basis review but RLUIPA’s mandated strict scrutiny. And in three
separate proceedings, a federal court found that it did. The fact that it
took the nine Justices of the United States Supreme Court to determine
that, on those facts, the Arkansas Department of Corrections failed to
meet its burden under strict scrutiny provides some sense of just how
far the center of gravity in prison law cases tilts in favor of the state —
and how prepared federal judges are to credit assertions by prison officials that would be roundly rejected if proffered by almost any other
litigant.193
Likewise, in Jones v. Bock,194 the Court rejected each of the three
heightened procedural burdens Sixth Circuit judges had been imposing
in prison suits.195 Yet the Court’s previously demonstrated readiness to
ignore standard judicial procedure (as in Whitley) and to rewrite the
rules of judicial review so as to benefit defendants (as in Banks) helps to
explain how three district judges in the Sixth Circuit could have felt free
to alter standard rules of pleading to the benefit of defendant prison
officials and at the expense of incarcerated plaintiffs. It also helps to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
193 Prison officials are not the only state actors to enjoy the benefits of judicial deference. The
Court has also, for example, historically shown deference to public school and military officials.
See, e.g., Morse v. Frederick, 551 U.S. 393, 403 (2007) (holding that a school administrator’s decision
to suspend a student for a banner displayed during an off-campus parade did not violate the First
Amendment); Chappell v. Wallace, 462 U.S. 296, 300 (1983) (“Civilian courts must, at the very least,
hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers . . . .”); see also Doe v.
Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 619 (8th Cir. 2002) (holding that expelling an eighthgrade student for language in a letter found at his home did not violate the First Amendment);
Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (applying deferential rational basis review
to an equal protection challenge brought by a gay U.S. Army Reserve sergeant alleging she had
been discharged based on her sexuality). For an in-depth discussion of the Court’s demonstrated
deference to public school officials, see generally Erwin Chemerinksy, The Hazelwooding of the
First Amendment: The Deference to Authority, 11 FIRST AMEND. L. REV. 291 (2013). And for one
comprehensive take on the military deference doctrine, see generally John F. O’Connor, The Origins
and Application of the Military Deference Doctrine, 35 GA. L. REV. 161 (2000). In these other
contexts, however, this deference seems to come without the palpable skepticism and dismissiveness
toward the plaintiffs’ arguments and concerns that are frequently in evidence when the plaintiffs
are prisoners. Instead, one sees courts, even when deciding for the defendants, emphasizing the
narrowness of the rulings, the minimally burdensome nature of the imposition, and the depth of the
state interest in regulating the precise conduct at issue — all moves indicating a measure of respect
for plaintiffs’ claims even when plaintiffs do not ultimately prevail. See, e.g., Parker v. Levy, 417
U.S. 733, 750–51 (1974) (upholding a court martial, although emphasizing that “enforcement of [the
Uniform Code of Military Justice] in the area of minor offenses is often by sanctions which are more
akin to administrative or civil sanctions than to civilian criminal ones”); Doe, 306 F.3d at 624 (finding no First Amendment violation against a student expelled based on content of a letter but going
out of its way to emphasize the limits of the intrusion, noting among other things that the government “has no valid interest in the contents of a writing that a person, such as [the plaintiff], might
prepare in the confines of his own bedroom”).
194 549 U.S. 199 (2007).
195 See id. at 208–09, 211, 224.

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make sense of the Sixth Circuit’s otherwise unaccountable readiness to
affirm in each case. From one angle, the Sixth Circuit ought not to have
been surprised by the Court’s holding in Jones; it is, after all, the obligation of the federal courts to apply established pleading standards and
not to revise them sua sponte to the detriment of disfavored parties. Yet
in adopting these procedural innovations at prisoners’ expense, the Sixth
Circuit might fairly be said to have only been following the Court’s
lead.196
Taken together, the cases described above also serve to illustrate the
way that in this legal arena, when it comes to the facts, the usual principles of judicial inquiry do not apply. Thus, one sees courts accepting
factual claims presented by defendants that were either disputed by the
record (following Rhodes) or contradicted common-sense understandings (as in Casey). In Munson, the Seventh Circuit endorsed with a
straight face the prison’s labeling the PDR and the Complete Guide as
contraband for their drug-related content, as if no difference existed between heart meds and heroin.197 And in Singer, the court put aside the
considerable evidence in the record refuting defendants’ ill-informed
claims regarding Dungeons and Dragons to reach the doubtful conclusion that no jury could possibly find for the plaintiffs at trial.198 Similar
dynamics are present in West,199 in which on no plausible version of the
facts could the force used have been thought warranted, and also in
Holt, in which multiple federal courts ruled as if the prison’s asserted
fear that Holt’s half-inch beard could be used to hide contraband was
not patently absurd.200 These cases may seem — and are — extreme in
terms of the courts’ discounting of the reality before them. But in their
determination to approach the facts in ways that benefit defendants at
the expense of incarcerated plaintiffs, the judges in these cases are arguably just following the Court in finding some way, however logically
questionable, to frame the matter in ways sympathetic to the state.
Certainly, there are plenty of prison law cases in which federal courts
put the state to its proof and appropriately apply governing rules and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
196 I read Jones as an announcement that the Court wished to reserve for itself the authority to
change the rules governing prison cases. Others may read it differently. But whatever the explanation, it bears notice that it is the Court’s response to the Sixth Circuit’s creation of new rules
governing PLRA exhaustion that seems to call out for explanation, and not the Sixth Circuit’s sua
sponte establishment of additional procedural burdens on incarcerated litigants. That this is so
only reinforces the main point: what is normative for this context is not fair treatment of all parties
and evenhanded judicial scrutiny of their submissions but instead the readiness to shift the goalposts
to benefit the state.
197 See Munson v. Gaetz, 673 F.3d 630, 633–34 (7th Cir. 2012).
198 See Singer v. Raemisch, 593 F.3d 529, 536, 540 (7th Cir. 2010).
199 West v. Byers, No. 13-cv-3088, 2015 WL 5603316 (D.S.C. Sept. 23, 2015), aff’d sub nom. West
v. Byars, 634 F. App’x 938 (4th Cir. 2016).
200 Holt v. Hobbs, 574 U.S. 352, 360 (2015).

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standards.201 But this being the baseline judicial obligation, such cases
should occasion no notice. The real puzzle is posed by cases of the sort
just canvassed. Are they just statistical outliers? Merely evidence that
federal courts may sometimes get it terribly wrong? In my view, to dismiss these opinions as marginal or of no moment would be to miss what
they reveal about the field as a whole. These cases are decided by courts
that have for decades looked to the Supreme Court’s prison law cases,
not merely for the standards they establish or the holdings they reach,
but for the tone they take and the signs they give as to how courts ought
to regard the parties and their submissions. The Court, in other words,
has led by example. That some federal judges, in their enthusiastic embrace of dispositional favoritism, may have somewhat slipped the traces
is perhaps not surprising in a regime lacking clear boundaries or guidelines.202 If, in these instances, courts have breached the limits of logic
or common sense or exceeded their authority in imposing new burdens
on incarcerated plaintiffs, it is the Court’s own handling of prison law
claims that has invited them to do so.
III. THE COVID CASES: DISPOSITIONAL
FAVORITISM IN AN EMERGENCY
This was the judicial environment in March 2020 when Covid hit.
From the first days of the pandemic, it was clear that the incarcerated
would face an outsized risk of infection and death from the
virus.203 The preventative measures that were emerging as key to selfprotection — practicing social distancing, avoiding socializing indoors,
maintaining good hand hygiene, making use of clean and effective
personal protective equipment, and so on — were practically
impossible for people in custody, who generally live in crowded, poorly
ventilated facilities and lack any meaningful control over their environment.204 To make matters worse, American penal institutions are full
of people who, whether because of age, medical comorbidities, or both,
are among those identified early in the pandemic by the Centers for
Disease Control and Prevention (CDC) as disproportionately likely to
develop severe complications from Covid.205 Immediately recognizing
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
201
202

See cases cited supra note 14.
See Dolovich, supra note 34, at 245 (“[T]aken as a body, the [prison law cases] reveal no
principled basis for determining when deference is justified, what forms it may legitimately take,
or the proper limits on its use. Instead, the mere mention of ‘deference’ has emerged as a catch-all
justification for curtailing . . . the burden on prison officials to ensure constitutional prisons . . . .”).
203 See Dolovich, supra note 15; Saloner et al., supra note 15, at 602–03 (finding that, over the
first four months of the pandemic, people held in state and federal prisons were experiencing Covid
infection at five-and-a-half times the rate of the American population as a whole and that, adjusted
for age, people in prison were dying of Covid at three times the national rate).
204 See Dolovich, supra note 15.
205 Id.

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the danger, advocates all over the country turned to the federal courts,
arguing unconstitutional conditions and seeking relief.
These efforts produced a mountain of case law. The resulting judicial opinions addressed a wide range of thorny issues, perhaps chief
among them the question of which procedural vehicle — habeas corpus
or 42 U.S.C. § 1983 — ought to govern when the gravamen of the claim
is unconstitutional conditions but the relief requested is release. At their
core, however, these cases were asserting a constitutional claim: that
subjecting people to living conditions well known to pose an inordinate
risk of Covid infection and death violated the Eighth Amendment. It
has long been established that prison conditions run afoul of this provision when prison officials are deliberately indifferent to prisoners’ basic
human needs.206 And as we have seen, in Farmer, the Court held that
the state of mind of Eighth Amendment deliberate indifference is equivalent to criminal recklessness, so that a prison “official [who] knows of
and disregards an excessive risk to [the] health or safety” of people in
custody satisfies this standard.207 Farmer’s holding is already extremely
defendant friendly.208 Yet under the extraordinary circumstances of the
pandemic, plaintiffs should have easily cleared the bar, given that, as
prison officials were well aware, the basic living conditions in prison
posed a substantial and disproportionate risk of serious harm to those
inside. At least as to this aspect of the analysis, that is, plaintiffs in the
Covid prison cases ought to have readily prevailed.
Yet this is not how it went — not by a long shot. In several Covid
cases, plaintiffs had some initial success, as district courts, directly confronting the reality on the ground, granted preliminary injunctions or
temporary restraining orders directing correctional officials to improve
conditions inside and/or to identify facility residents at highest risk from
Covid and prepare for their release.209 But some plaintiffs still lost in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
206 See, e.g., Wilson v. Seiter, 501 U.S. 294 (1991); Rhodes v. Chapman, 452 U.S. 337 (1981);
Estelle v. Gamble, 429 U.S. 97 (1976).
207 See Farmer v. Brennan, 511 U.S. 825, 837 (1994); id. at 839–40; see also Helling v. McKinney,
509 U.S. 25, 35–36 (1993) (holding that plaintiffs satisfy the objective component of an Eighth
Amendment claim if they can demonstrate exposure to “an unreasonable risk of serious damage to
[their] future health,” id. at 35, and can show that the risk is one “society considers . . . so grave that
it violates contemporary standards of decency to expose anyone unwillingly to such a risk,” id. at
36 — in other words, “that the risk of which he complains is not one that today’s society chooses to
tolerate,” id.).
208 For extended discussion on this point, see Dolovich, supra note 55, at 945–48 (arguing that
Farmer’s actual knowledge standard enables both macro- and micro-level failures inflicting harm
on prisoners to go unaddressed).
209 See, e.g., Wilson v. Williams, 455 F. Supp. 3d 467 (N.D. Ohio 2020), vacated and remanded,
No. 20-cv-00794, 2020 WL 2542131 (N.D. Ohio May 19, 2020), vacated, 961 F.3d 829 (6th Cir. 2020);
see also Wilson, No. 20-cv-00794, 2020 WL 2542131 (N.D. Ohio May 19, 2020) (Federal Correctional
Institution Elkton); Valentine v. Collier, 455 F. Supp. 3d 308 (S.D. Tex.) (Texas Wallace Pack Unit
Prison), rev’d, 993 F.3d 270 (5th Cir. 2021), motion to vacate denied, 140 S. Ct. 1598 (2020); Mays v.

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the district court.210 And even when they won, in virtually every case
framed as a constitutional class action,211 decisions in plaintiffs’ favor
were eventually overturned on appeal.212 In case after case, appeals
courts granted defendants stays of district court orders — and in the
two instances where the circuit court declined to grant the stay, the
Supreme Court stepped in and did it for them.213
How did they manage it? This is not the place for a full accounting
of how, at this singular moment, when more than two million incarcerated people found themselves held captive under conditions facilitating
the spread of a deadly pathogen, the federal courts ultimately rebuffed
virtually all petitions for constitutional relief. For present purposes, the
main point is that, in these cases, many appellate courts resorted to the
familiar evasive moves of dispositional favoritism modeled so assiduously by the Court and internalized by the federal judiciary in the decades leading up to the pandemic. What we see in particular is frequent
recourse to three main pro-state strategies: selective reading of the facts;
a recasting of governing constitutional standards — here, Eighth
Amendment deliberate indifference; and a studied disregard of prisoners’ lived experience during Covid and what the case at hand would
mean in practical terms for incarcerated plaintiffs. These moves often
appeared together, with courts ignoring plaintiffs’ evidence and accepting wholesale defendants’ framing of the facts in order to conclude,
based on subtle (or not so subtle) revisions of Farmer’s deliberate indifference standard, that plaintiffs had failed to meet their burden.
I defer to another day a detailed catalog of the many ways appeals
courts reframed Eighth Amendment deliberate indifference to increase
the burden on incarcerated plaintiffs bringing Covid-related conditions
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Dart, 453 F. Supp. 3d 1074 (N.D. Ill.) (Cook County Jail), rev’d in part, vacated in part, aff’d in part,
974 F.3d 810 (7th Cir. 2020); Swain v. Junior, No. 20-cv-21457, 2020 WL 1692668 (S.D. Fla. Apr. 7,
2020) (Miami-Dade Metro West Detention Facility), vacated and remanded, 961 F.3d 1276 (11th Cir.
2020).
210 See, e.g., Money v. Pritzker, 453 F. Supp. 3d 1103 (N.D. Ill. 2020) (Illinois state prisons).
211 See Dolovich, supra note 15, at *24 n.46 (explaining that only two Covid-related cases seeking
broad constitutional relief for people in prison actually yielded releases and that in both instances,
the finding of deliberate indifference on the part of Federal Bureau of Prisons officials rested not
on defendants’ general failure to take sufficient precautionary measures but on their failure to implement the clear directive, issued by then–Attorney General William Barr pursuant to the
Coronavirus Aid, Relief, and Economic Security Act (CARES Act), 15 U.S.C. § 9001 (Supp. II 2020),
to expand the use of home confinement as a response to the pandemic).
212 See, e.g., Swain v. Junior, 958 F.3d 1081 (staying preliminary injunction); Valentine v. Collier,
956 F.3d 797 (5th Cir. 2020) (same).
213 Barnes v. Ahlman, 140 S. Ct. 2620 (2020); Williams v. Wilson, No. 19A1047, 2020 WL 2988458
(U.S. June 4, 2020) (mem.) (granting stay pending disposition of the Government’s appeal in the
Sixth Circuit); cf. Valentine v. Collier, 140 S. Ct. 1598 (2020) (denying plaintiffs’ request to vacate
stay granted by the Fifth Circuit).

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challenges.214 Here I will highlight just one such move, which emerged
as an especially common means by which courts eased the state’s constitutional burden. This approach relied on Farmer’s observation that
“prison officials who actually knew of a substantial risk to inmate health
or safety may be found free from liability if they responded reasonably
to the risk, even if the harm ultimately was not averted.”215 As articulated, this caveat is not inconsistent with Farmer’s mens rea holding —
but here, the Farmer Court’s precise formulation is crucial. Under the
logic of recklessness, it is only a reasonable response to the risk that
should suffice as a defense. Otherwise, any act on the defendants’ part
occasioned by the awareness of the risk would defeat a recklessness finding, even if that act were entirely ineffectual in averting the danger and
the defendant knew it to be so. As Justice Sotomayor put it in her dissent from the Court’s refusal to vacate a stay in the Fifth Circuit case
of Valentine v. Collier,216 the fact that “respondents took reasonable ‘affirmative steps’ to respond to the virus” cannot be sufficient to defeat a
showing of deliberate indifference under Farmer “when officials know
that those steps are sorely inadequate and leave inmates exposed to substantial risks.”217 Yet, relying on the “reasonable response” language
quoted above (and seemingly following the early lead of the Fifth
Circuit, a first mover on this front), several courts proceeded as if
evidence of any affirmative measures on the part of prison officials undertaken in response to Covid was sufficient to rebut deliberate indifference, regardless of whether the defendants knew full well that the
danger persisted.218
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
214 For helpful discussion on this theme, see Brandon L. Garrett & Lee Kovarsky, Viral Injustice,
110 CALIF. L. REV. 117 (2022); and Michael L. Zuckerman, When the Conditions Are the
Confinement: Eighth Amendment Habeas Claims During COVID-19, 90 U. CIN. L. REV. 1 (2021).
215 Farmer v. Brennan, 511 U.S. 825, 844 (1994).
216 140 S. Ct. 57 (2020).
217 See id. at 61 (Sotomayor, J., dissenting from the denial of application to vacate stay) (quoting
Valentine v. Collier, 978 F.3d 154, 164 (5th Cir. 2020)).
218 Many courts hearing conditions challenges early in the pandemic conveniently elided this
point. In the Middle District of Louisiana, defendants were found not constitutionally liable because they “clearly demonstrated that they ha[d] taken measures to implement precautions to protect inmates from the COVID-19 pandemic,” without the court making any finding as to whether
those measures were sufficient to mitigate the threat or whether defendants subjectively believed
they were. Belton v. Gautreaux, No. 20-00278, 2020 WL 3629583, at *5 (M.D. La. July 3, 2020).
And for the Eleventh Circuit, it was enough that, “when faced with a perfect storm of a contagious
virus and the space constraints in a correctional facility, the defendants here acted []reasonably by
‘doing their best’” — regardless of whether the actions the defendants had taken made any appreciable difference to the danger Covid posed to people in their custody. Swain v. Junior, 961 F.3d
1276, 1289 (11th Cir. 2020). It is true that the Covid threat required drastic remedies. To meaningfully reduce the risk to incarcerated people, state officials would have needed to release sufficient
numbers of people to enable social distancing among those who remained. Yet, even in the postPLRA world, this situation is hardly unprecedented. In Plata and Coleman, two class actions
brought against the CDCR, federal courts found medical and mental health care delivery in CDCR
prisons to be constitutionally deficient. Pursuant to those findings, there ensued a concerted effort

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Still, in several cases, even this defendant-friendly gloss on Farmer’s
deliberate indifference standard was insufficient to warrant a finding
for the state. In some instances, the steps defendants attested to taking
were on their face so glaringly inadequate that claims of a “reasonable
response” rang especially hollow. In others, plaintiffs introduced evidence that, although defendants had announced policies to mitigate the
risk of Covid spread, those policies were not actually being followed.219
This reality put heightened pressure on courts predisposed to side with
the state and disinclined to look with favor on plaintiffs’ claims. But
judges finding themselves in this situation were not without resources.
It was in these moments of greatest tension between the weight of the
evidence and the courts’ felt imperative to forebear from holding the
state constitutionally liable that judicial recourse to the familiar moves
of dispositional favoritism became most obvious. The resulting opinions
often have the same bizarre quality as those canvassed above in section
II.C. On the surface, they possess what might be thought of as the
aesthetic of legal argument — they flag legal issues, cite precedent, name
and apply standards, reach conclusions, and so forth. Yet in substance,
in many instances, the analyses lack the signs of the open-minded and
evenhanded weighing of the evidence and arguments that are supposed
to define good faith judicial reasoning.
Below are just two examples of the way appeals courts faced with
cases involving Covid in prison combined a recasting of the deliberate
indifference standard with a defendant-friendly reading of the facts to
justify finding for the state.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
by a range of state actors — corrections officials, legislators, public health experts, and even the
governor — to institute court-ordered remedies. See Schlanger, supra note 95, at 184–91.
Ultimately, the process required considerable population reduction in CDCR facilities, and for the
same reason plaintiffs were giving in the Covid prison cases: without reductions in population density, CDCR officials would be unable to satisfy their constitutional obligation to protect the incarcerated against known risks of serious harm. Id. at 186. For CDCR officials to have defended
against allegations of unconstitutional medical or mental health care on the grounds that they were
“doing their best” would have been insufficient in Plata or Coleman to defeat a finding of deliberate
indifference so long as the defendants realized that the danger posed to people in CDCR facilities
persisted.
219 See Dolovich, supra note 15, at *11–13. Prison officials cannot always be assumed to know
everything going on in their facilities. But given the urgency of the need to limit Covid infection
and what was well understood about Covid transmission from the first weeks of the pandemic, it
can fairly be assumed that those running prisons in the spring of 2020 would have known whether,
for example, those in their facilities were “socializing in dayrooms with no space to distance physically,” Barnes v. Ahlman, 140 S. Ct. 2620, 2621 (2020) (Sotomayor, J., dissenting from the grant of
stay), or standing “shoulder-to-shoulder” while waiting to be seen in the medical clinic, or whether
kitchen workers “only occasionally [wore] face masks . . . while serving food,” Marlowe v. LeBlanc,
No. 18-63, 2020 WL 1955303, at *4 (M.D. La. Apr. 23, 2020), stay granted, 810 F. App’x 302 (5th
Cir. 2020), motion to vacate denied, 140 S. Ct. 2823 (2020).

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A. Wilson v. Williams
Wilson v. Williams220 arose out of Federal Correctional Institution
Elkton (FCI Elkton), where, by April 2020, six people had already died
of Covid,221 “more clung to life only with the aid of ventilators,”222 and
at least thirty-five percent of the population was over the age of sixtyfive or had “significant [preexisting] health conditions making them
extremely vulnerable to COVID-19.”223 Reviewing the preliminary
injunction on the merits, the Sixth Circuit conceded that the Federal
Bureau of Prisons (BOP) “was aware of and understood the potential
risk of serious harm” that Covid posed to Elkton residents.224 The issue,
as the panel framed it, was whether “the BOP responded reasonably to
the known, serious risks posed by COVID-19 to [the] petitioners.”225 In
finding that the BOP “‘responded reasonably to the risk’ and therefore
ha[d] not been deliberately indifferent,” the panel emphasized the BOP’s
implementation of a “six-phase action plan to reduce the risk of
COVID-19 spread at Elkton.”226 Yet, taking a closer look at the details
of this official response, it is hard to see how it could be thought a reasonable response, if “reasonable” means in any way adequate to mitigate
the risk. As Chief Judge Cole explained in his Wilson dissent, the BOP’s
plan, broken down, amounted to:
two different phases addressing the screening of inmates, an entire phase
consisting of only taking inventory of the BOP’s cleaning supplies, a phase
where the BOP confined inmates to their quarters where they cannot socially distance, and a final phase that just extended the previous one[, making it], for practical purposes, a four-phase plan where one phase is taking
inventory of supplies and another involves the locking of inmates in 150person clusters where they cannot access the principal method of COVID19 prevention.227

The BOP also emphasized that it was “conduct[ing] testing in accordance with CDC guidance.”228 However, in May 2020, the district
court had found that, up to that point, only 524 Covid tests had been
administered in Elkton, a facility then housing 2357 people, and that of
those tests performed, “approximately 24% . . . came back COVID-19
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
220
221
222
223

961 F.3d 829 (6th Cir. 2020).
See Dolovich, supra note 15, at *21.
Wilson, 961 F.3d at 845 (Cole, C.J., concurring in part and dissenting in part).
Wilson v. Williams, No. 20-cv-00794, 2020 WL 2542131, at *2 (N.D. Ohio May 19, 2020), stay
granted, 207 L. Ed. 2d 168 (2020), vacated and remanded by No. 20-3547, 2020 WL 9813537 (6th
Cir. Sept. 17, 2020). For further discussion of Wilson, see Dolovich, supra note 15, at *21–24.
224 Wilson, 961 F.3d at 840.
225 Id.
226 Id. at 841 (quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)).
227 Id. at 848 (Cole, C.J., concurring in part and dissenting in part).
228 Id. at 841 (alteration in original).

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positive.”229 This data suggests both a glaringly inadequate testing protocol and a worrying degree of viral spread in a facility housing a high
proportion of Covid-vulnerable people.230 This data, moreover, was
well known to BOP officials. It thus seemed plain that, regardless of
any actions they had taken in mitigation to that point, officials at FCI
Elkton would have “know[n] that those steps [we]re sorely inadequate
and le[ft] inmates exposed to substantial risks.”231 Yet on the strength
of the BOP’s representation of all it had done “to reduce the risk of
COVID-19 spread at Elkton,” the Sixth Circuit found that defendants
had “responded reasonably to the risk” and thus were not deliberately
indifferent.232 Labelling this conclusion “dispositive,” the panel concluded that the plaintiffs had no likelihood of success on the merits
of their Eighth Amendment claim and vacated the preliminary
injunction.233
B. Swain v. Junior
Swain v. Junior234 was brought by a class of detainees in the
Miami-Dade Metro West Detention Center (Metro West).235 In its opinion, the Eleventh Circuit emphasized the testimony by defendant jail
officials that they took “numerous measures . . . to mitigate the spread
of the virus,” “including, among many other things,” “‘requiring staff
and [detainees] to wear face masks at all times (other than when sleeping),’ . . . and ‘providing disinfecting and hygiene supplies to all [detainees].’”236 In addition, the panel cited “the court-commissioned expert
report,” which found that jail officials had “put ‘tape on the floor to
encourage social distancing in lines,’” “‘[staggered] bunks . . . with head
to foot configuration’ . . . to maximize the distance between faces during
sleep,” and ensured that “patients are staggered and appropriately distanced when going to medical.”237
Yet, as Judge Martin noted in her dissent, the record contained numerous declarations from Metro West detainees directly contradicting
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
229
230

Wilson v. Williams, No. 20-cv-00794, 2020 WL 2542131, at *1 (N.D. Ohio May 19, 2020).
By this point in the pandemic, the Ohio Department of Corrections had already conducted
mass testing at two facilities comparable in population size to FCI Elkton. See Dolovich, supra
note 15, at *22.
231 Valentine v. Collier, 140 S. Ct. 57, 61 (2020) (Sotomayor, J., dissenting).
232 Wilson, 961 F.3d at 841. As the Sixth Circuit observed, their “sister circuits have concluded
that similar actions by prison officials demonstrate a reasonable response to the risk posed by
COVID-19.” Id. (citing Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020); Valentine v. Collier, 956
F.3d 797 (5th Cir.), motion to vacate denied, 140 S. Ct. 1598 (2020); Marlowe v. LeBlanc, 810 F.
App’x 302 (5th Cir.), motion to vacate denied, 140 S. Ct. 2823 (2020)).
233 Wilson, 961 F.3d at 845.
234 961 F.3d 1276 (11th Cir. 2020).
235 Id. at 1280.
236 Id. at 1287–91.
237 Id. at 1287–88.

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these specific claims. Among other things, plaintiffs’ witnesses testified
that “it is often difficult or impossible to clean shared surfaces, such as
phones, because they are not provided with disinfectant or other cleaning supplies”;238 that although “detainees were each given a mask approximately once a week, . . . the masks are ‘soft,’ ‘rip a lot,’ . . . ‘get
really dirty[,]’ [and sometimes] break after ‘two to three days’”;239 that
detainees were “lined up less than a foot apart for pat-down inspections”;240 and that, while waiting in medical, “detainees must wait
‘shoulder to shoulder,’ sometimes with people from other cells.”241 As
for the expert report commissioned by the court, plaintiffs’ witnesses
attested that:
[I]mmediately before the inspection Metro West staff made numerous last
minute changes, including moving people out of cells that were going to be
inspected so they would be less crowded; restocking toilet paper and soap;
painting bathroom walls to cover black mold; scrubbing down cells; and
placing additional soap in the unit.242

Despite evidence directly contradicting the defendants’ account and
strongly suggesting manipulation of the fact-finding process, the panel
found, on the strength of defendants’ representations, that jail officials
had “acted reasonably” and thus that a finding of Eighth Amendment
deliberate indifference was inappropriate.243 The panel therefore vacated the preliminary injunction.244
C. Dispositional Favoritism as a Normative Project
For those whose first encounter with prison law came through the
Covid cases, and in particular the several appellate decisions that together foreclosed constitutional relief for incarcerated plaintiffs nationwide, the judicial reasoning they contain may have seemed puzzling.
Yet as those familiar with the field well know, what one finds in these
cases is only the logical extension of the normative posture courts have
long adopted toward constitutional (or quasi-constitutional245) claims
brought by prisoners.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
238
239
240
241
242
243
244

Id. at 1300 (Martin, J., dissenting).
Id.
Id. at 1301.
Id.
Id. at 1301–02.
Id. at 1289 (majority opinion).
Likewise, in Barnes v. Ahlman, the Supreme Court granted a stay to jail officials in Orange
County despite evidence that “the Jail misrepresented under oath . . . the measures it was taking to
combat the virus’ spread, and even though the Jail’s central rationale for a stay . . . ignore[d] the
lower courts’ conclusion that the Jail’s measures fell ‘well short’ of . . . [CDC] Guidelines.” Barnes
v. Ahlman, 140 S. Ct. 2620, 2621 (2020) (Sotomayor, J., dissenting from the grant of stay).
245 See, e.g., Holt v. Hobbs, 574 U.S. 352 (2015) (concerning the free exercise of religion under
RLUIPA).

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The judiciary is not the only public institution to regard the incarcerated with hostility. The legislative politics of the tough-on-crime era
of the 1980s and 1990s were enabled by a sense — still persisting
today — that people with criminal convictions, especially prisoners, are
“a breed apart,”246 “a different species of threatening, violent individuals
for whom we can have no sympathy and for whom there is no effective
help.”247 And in the prisons themselves, innumerable dynamics reinforce the dehumanization and demonization of people in custody, which
in turn shape the way prison officials treat the incarcerated.248 In sum,
as I have argued at length elsewhere, there is in the United States no
branch of democratic government in which people in custody are regarded or treated as human beings entitled to respect and protection
from needless harm.249
How to explain this troubling moral economy? People in prison are
among the most socially marginalized and politically disenfranchised
members of society, disproportionately likely to be undereducated, unskilled, and indigent and disproportionately likely to suffer from mental
illness and substance use disorder.250 Paradoxically, this extreme vulnerability may explain rather than confound the callous indifference toward the imprisoned that those in power too frequently display; as
Nancy Isenberg documents, contempt and even disgust toward those
most in need of compassion and help is a longstanding American cultural tradition.251
And then there is the matter of race. As is well documented, Black
Americans are wildly overrepresented in the U.S. prison population,252
a disparity that only begins to hint at the deeply racialized character of
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246
247

KELSEY KAUFFMAN, PRISON OFFICERS AND THEIR WORLD 119 (1988).
DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN
CONTEMPORARY SOCIETY 136 (2001).
248 See Dolovich, Excessive Force, supra note 40.
249 See generally Dolovich, The Failed Regulation, supra note 7.
250 See Sharon Dolovich, Foreword: Incarceration American-Style, 3 HARV. L. & POL’Y REV.
237, 244 (2009).
251 See generally NANCY ISENBERG, WHITE TRASH: THE 400-YEAR UNTOLD HISTORY OF
CLASS IN AMERICA (2016).
252 See, e.g., ASHLEY NELLIS, THE SENTENCING PROJECT, THE COLOR OF JUSTICE: RACIAL
AND ETHNIC DISPARITY IN STATE PRISONS 5 (2021), https://www.sentencingproject.org/
publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons
[https://perma.cc/SQ8W4SR7] (reporting that Black Americans are incarcerated at nearly five times the rate of White
Americans; that in seven states, the Black-White disparity is greater than nine to one; and that
in twelve states, “more than half the prison population is Black”); Wendy Sawyer, Visualizing the
Racial Disparities in Mass Incarceration, PRISON POL’Y INITIATIVE (July 27, 2020), https://
www.prisonpolicy.org/blog/2020/07/27/disparities [https://perma.cc/JU8B-NHH5] (reporting that,
although Black Americans comprise twelve percent of the U.S. population, they represent fortyeight percent of people “serving sentences of life, life without parole, or ‘virtual life’” and forty-two
percent of people on death row).

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the American carceral project.253 It is, moreover, no secret that race
bias, whether implicit or explicit, predisposes individuals to respond to
people of color, and Black Americans in particular, as somehow less than
human and thus less morally worthy than similarly situated Whites.254
While it is impossible to know how much of the Court’s disposition toward the incarcerated is shaped by these pernicious forces, it is equally
hard to imagine that they do not play some appreciable role.255
This brings us back to the Covid cases. Here, I intentionally leave
to one side the question of why the federal courts may have been especially determined to deny constitutional relief to people who found
themselves behind bars during the pandemic. For present purposes, the
key point is that, even in this singular emergency, the orientation of the
courts remained consistent with the normative tenor of prison law as a
whole — and with the consequent dispositional favoritism that is its
hallmark. The ultimate effect has been to leave the prison environment,
even during the height of the Covid threat, almost wholly free from judicial regulation.
CONCLUSION
There is a striking coherence to the Supreme Court’s prison law doctrine: it is predictably pro-defendant, highly deferential to prison officials, and largely indifferent to the impact of judicial decisions on the
lived experience of people in custody. This pronounced pro-state tilt, I
have argued, is a function of the divergent normative inclinations evident in the Court’s treatment of the parties in prison law cases, which
leads the Court to elevate the perspective, interests, and experience of
prison officials and to devalue those of incarcerated litigants. The most
obvious manifestation of this normative posture has been the crafting of

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253 See Dolovich, The Failed Regulation, supra note 7, at 169–70 (tracing the role of incarceration
as a system of racial control during slavery and continuing after Emancipation through Jim Crow
and up to present day); see also Taja-Nia Y. Henderson, Property, Penality, and (Racial) Profiling,
12 STAN. J. C.R. & C.L. 177, 178 (2016) (describing the role local jails played in supporting enslavers
and the institution of chattel slavery itself in the antebellum South); John Bardes, The Problem of
Incarceration in the Age of Slavery 5, 43–47 (unpublished manuscript) (on file with the Harvard
Law School Library) (describing a network of carceral institutions forming a “statewide penal system for enslaved convicts” in Louisiana, Mississippi, Tennessee, and elsewhere in the antebellum
South, and describing the brutal methods of torture employed to humiliate and “discipline” the
enslaved people held in those facilities).
254 See generally L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12
OHIO ST. J. CRIM. L. 115 (2014); Kelly Welch, Black Criminal Stereotypes and Racial Profiling, 23
J. CONTEMP. CRIM. JUST. 276 (2007).
255 I thank Rose Daeun Jung for pushing me to address the dynamics motivating the Court’s
dispositional favoritism.

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doctrinal standards that systematically benefit defendant prison officials.256 But as we have seen, there also exist several additional mechanisms by which prison law cases are made to shift in favor of the state.
Some of these moves — the reframing of the facts, the remaking of procedural burdens — are relatively easy to spot.257 Others represent the
more subtle effects of an overall moral orientation, here labeled dispositional favoritism, which disposes courts, following the Supreme Court’s
lead, to take every opportunity to turn things in defendants’ direction at
plaintiffs’ expense.258 The effect has been a body of law that ensures
only minimal constitutional protections for a class of legal subjects
whose interactions with state actors take place behind high walls, away
from public view, and in fraught and adversarial environments where,
absent some meaningful external check, uniformed officers hold all the
power.
It does not have to be this way. True, there is little likelihood of a
shift any time soon in the overtly pro-state slant of the governing doctrinal standards; any such change must await a Supreme Court differently oriented than the new Roberts Court. But even as things stand,
the judicial abandonment of dispositional favoritism would go far toward making the federal courts a site of fair adjudication of prisoners’
constitutional rights. And as this essay shows, courts already have the
tools at their disposal to make this change. All it takes is a readiness on
the part of judges to (1) acknowledge people in custody as full-fledged
constitutional subjects entitled to the protections this status entails, (2)
explicitly recognize prison officials as the state actors charged with fulfilling the state’s obligations to the incarcerated and thus whose official
conduct demands careful scrutiny, and (3) approach each case with
open-mindedness and evenhandedness in the treatment of litigants and
the scrutiny of their evidence and arguments. These requisites are far
from radical; they are indeed only the basic obligations that ought to
guide such judicial deliberations. The current shape of the prison law
doctrine, the product of decades of dispositional favoritism on the part
of the courts, is thus at once a testament to the widespread judicial abdication of these basic obligations and a roadmap pointing the way out
for any judge inclined to follow it.

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256
257
258

See supra Part I, pp. 305–16.
See supra section II.B, pp. 319–25.
See supra sections II.B–C, pp. 319–32.