Sharon Dolovich (University of California, Los Angeles - School of Law) has published "The Coherence of Prison Law" on SSRN. Here is the abstract:
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 terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also 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. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.
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