Law Commons^™

Against Solitary Confinement: Jonah's Redemption And Our Need For Mercy, Margo Schlanger

Articles

Author’s Note: This essay is adapted from one I wrote in September 2013 to give as a d’var Torah for Yom Kippur, and published in Tablet, an online Jewish magazine. Mostly, I’ve added footnotes. As a law professor, I am far more expert at constitutional than biblical exegesis. But perhaps because the Bible and the Constitution share their status as instrumental and highly authoritative documents, my own subjective experience of developing a reading or critique of both has turned out to be remarkably similar. Both exercises require close textual reading and wide-ranging investigation of its extant interpretations; both are informed …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

Articles

This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger

Articles

The Prison Litigation Reform Act (PLRA), enacted in 1996 as part of the Newt Gingrich "Contract with America," is now as old as some prisoners. In the year after the statute's passage, some commenters labeled it merely "symbolic." In fact, as was evident nearly immediately, the PLRA undermined prisoners' ability to bring, settle, and win lawsuits. The PLRA conditioned court access on prisoners' meticulously correct prior use of onerous and error-inviting prison grievance procedures. It increased filing fees, decreased attorneys' fees, and limited damages. It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions. It made …

Is America Becoming A Nation Of Ex-Cons?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Recent rates of mass incarceration have become a concern, but those rates are only part of the challenge facing (and posed by) the American criminal justice system. An estimated 25% of the U.S. adult population already has a criminal record and, with new felony convictions churning out at a rate of a million per year, America is well on its way to becoming a nation of ex-cons. Already, the ex-offender class is the nation’s biggest law-defined, legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is …

"I Am Opposed To This Procedure": How Kafka's In The Penal Colony Illuminates The Current Debate About Solitary Confinement And Oversight Of American Prisons, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This is the 100th anniversary of Franz Kafka's In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison's operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight.

At …

Prison Privatization And Inmate Labor In The Global Economy: Reframing The Debate Over Private Prisons, Alfred C. Aman, Carol J. Greenhouse

Articles by Maurer Faculty

The pragmatics of privatization offer terrain for a critical understanding of the relationship between government and business under the conditions associated with the globalization of neoliberal capitalism. Prison privatization is especially significant in this context, given the fact that—for privatization advocates and critics alike, in the United States and elsewhere—prisons represent a bellwether for broader questions about the scope of government. We review the recent history of prison privatization in the United States from the vantage point of the policy responses to the privatization movement more generally, to highlight the various factors that, over time, made private prisons iconic of …

Boys, Rape And Masculinity: Reclaiming Boys’ Narratives Of Sexual Violence In Custody, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice — sexual abuse of boys in custody by female staff. Professor Smith outlines the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk article concludes with policy and practice prescription and recommendations for further …