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Forms of Judicial Deference in Prison Law

by Sharon Dolovich1

Anyone familiar with the constitutional law of prisoners’ rights knows how ready courts are to find against prisoners in the name of “judicial deference.” It is not unreasonable for courts to grant a measure of deference to state actors tasked with a job as complex, challenging and hazardous as running prisons. But it is also the role of the courts to enforce the Constitution, and if that role is not to be abdicated then the need for deference ought not to preclude good faith implementation of constitutional protections.

Of these two imperatives—judicial deference and meaningful constitutional enforcement—the former is arguably the primary driver of the Supreme Court’s prisoners’ rights jurisprudence. Yet taken as a body, the cases in this area 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 rationale for curtailing both the burden on prison officials to ensure constitutional prisons and prisoners’ prospects for recovery, even for potentially meritorious claims.

The role of judicial deference in prison law merits a longer and more in-depth treatment than that offered here. This article is simply a first cut at the issue. As such, it does three things. First, it identifies three main forms that deference takes in this area and provides examples of the deployment of each in prisoners’ rights cases. Second, it highlights moments in cases involving the Prison Litigation Reform Act (PLRA) where the Supreme Court has opted not to defer (thus seeming to reject strategies it freely employs elsewhere), and offers a preliminary hypothesis as to why this might be. Third and finally, this article calls for a theory of deference in the prison law context; i.e., for the development of principles to guide judicial deference in prison law cases and to set appropriate limits on its use.

I. Deference in Action

In cases concerning prisoners’ constitutional rights, the imperative of judicial deference takes three main forms. First and most obviously, deference is doctrine-constructing. In this aspect, deference to prison officials is written right into the substantive constitutional standards, yielding rules of decision that tip the scales in favor of the defendants. Second, deference is used to justify procedural rule-revising in ways that transform familiar aspects of the legal process into more inherently defendant-friendly procedural mechanisms. Third, deference spurs situation-reframing, or the recasting of a procedural or factual history in ways that enhance the defendant’s position at the plaintiff’s expense.

There are many examples of deference operating in each of these ways in the Supreme Court’s prisoners’ rights cases. The most obvious example of deference in its first, doctrine-constructing form is Turner v. Safley.2 In Turner, the Court held that prison regulations that burden prisoners’ constitutional rights may nonetheless be upheld if they are “reasonably related to legitimate penological interests.”3 This holding is itself deferential, creating a space in which prison officials can violate constitutional rights if they can show that doing so facilitates running the prison. But the extent to which Turner writes deference into law is clearest in the Court’s description of the four factors courts are to use to determine when challenged regulations satisfy the Turner standard.

The four factors themselves do not necessarily betray a pro-deference slant: 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”;4 (2) whether there are “alternative means of exercising the right that remain open to prison inmates”;5 (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”;6 and (4) whether there are “ready alternatives” by which prison officials can realize their interests while also affording prisoners the exercise of their rights.7

But the Turner Court’s elaboration of each of these factors leaves no doubt that the test is intended to be extremely deferential, and provides language for lower courts to draw on to frame this deference as a legal mandate. Thus, the Supreme 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”;8 (2) that “where ‘other avenues’ remain available for the exercise of the right, courts should be particularly conscious of the measure of judicial deference owed to correctional officers”;9 (3) that “in 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”;10 and (4) that “if an inmate 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.”11

In short, having plainly instructed lower courts that they must be deferential in assessing alternatives (factor 2) and that any change to a prison regime will necessarily have ramifications for the institution (factor 3), the Turner Court made clear that, unless the challenged policy is found to be an “arbitrary or irrational” method for the state to achieve its stated goals (factor 1) and claimants can identify an alternative means to “fully accommodate” their rights without any appreciable cost to the prison (factor 4), the challenged regulation is to be upheld. And sure enough, it is a rare case decided under Turner in which the (usually pro se) plaintiff ultimately prevails.

Turner, moreover, is hardly the only case that writes deference right into the standards. In Whitley v. Albers,12 the Supreme Court addressed the question of when the use of force violates the Eighth Amendment. Although previous cases had held that prison officials violate the Eighth Amendment when they are “deliberate[ly] indifferen[t]” to prisoners’ basic needs,13 Whitley held that use of force against prisoners is only unconstitutional when applied “maliciously and sadistically for the very purpose of causing harm.”14
Absent a showing of this extremely high (and extremely deferential) mens rea standard, no use of force—however excessive, however unreasonable—will be found unconstitutional.

And in Farmer v. Brennan,15 the Court defined deliberate indifference as the equivalent of criminal recklessness, thereby protecting prison officials from liability even for conditions, however egregious, about which they should have known but did not.16
Farmer framed its holding as necessitated by the language of the Eighth Amendment; in Wilson v. Seiter,17 the Court had found that “[i]f the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some [subjective] mental element must be attributed to the inflicting officer before it can qualify [as punishment].”18 But Wilson’s reasoning does not stand up to scrutiny,19 and once this (pretextual) justification is removed, it is hard not to see Farmer’s holding as a product of the Supreme Court’s determination to create a zone for the exercise of official discretion undisturbed by constitutional imperatives.

Deference also operates in the Court’s prisoners’ rights cases in the second way noted above, i.e., to justify the altering of existing procedural rules in ways benefiting defendants at the plaintiff’s expense. One early example of this form of deference in practice is found in the 1977 case of Jones v. North Carolina Prisoners’ Labor Union, Inc.20 At the time, North Carolina permitted prisoners to join a labor union but imposed rules prohibiting members from holding meetings or soliciting new members. Union members who broke those rules were subject to discipline. Prisoners belonging to the union brought suit, alleging violation of their First Amendment rights of speech and association.21 The defendants argued that the restrictions were justified on grounds of prison security—specifically, the concern that some union members could “establish a power bloc” within the prison that “could be utilized to cause work slowdowns or stoppages or other undesirable concerted activity.”22

A three-judge District Court panel, although crediting the sincerity of the defendants’ beliefs, also heard expert evidence to the contrary and thus concluded that the “expert opinion evidence” was “conflicting.”23 Noting that “not one scintilla of evidence” had been offered to show that the union had ever interfered with the prison’s operations,24 the panel ultimately found itself unpersuaded that the solicitation prohibition was “necessary or essential to security and order in the prisons.”25 Having thus weighed the testimony in its capacity as finder of fact, the District Court panel found for the prisoners.26

The Supreme Court, however, reversed.27 Emphasizing “the wide-ranging deference to be accorded the decisions of prison administrators,”28 Justice Rehnquist took issue not with the substance of the panel’s reasoning, but with its approach to weighing the evidence. As he put it:

Without a showing that [defendants’] beliefs were unreasonable, it was error for the District Court to conclude that [they] needed to show more. In particular, the burden was not on [defendants] to show affirmatively that the Union would be detrimental to proper penological objectives or would constitute a present danger to security and order. Rather, such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.29

In other words, although it is ordinarily the job of the trier of fact to hear witness testimony—including expert testimony—and to weigh the evidence presented, Justice Rehnquist made clear that in prison cases, unless there is “substantial evidence” to suggest that the prison officials’ response was “exaggerated,” courts are to presume the correctness of their assertions.30 This mandated deference is more than an
acknowledgment that people with expertise in running prisons are likely to have a deeper understanding of the matter. At trial, the District Court heard direct testimony supporting the prisoners’ position from a range of experienced prison administrators.31 In other words, the experts on both sides had plenty of experience and expertise. But North Carolina Prisoners’ Union made it clear that it is the defendants to whom the court should defer, crediting their testimony absent an affirmative “showing that [their] beliefs were unreasonable,” thereby freeing the defendants from the usual expectation that their own evidence characterizing the situation will be subject to challenge and meaningful judicial scrutiny.

A more recent example of the altering of established procedural rules in the prisoners’ rights context in the name of deference is found in the 2006 case of Beard v. Banks.32 In Banks, prisoners held in Pennsylvania’s “long-term segregation unit” (LTSU) challenged on First Amendment grounds a policy denying them access to newspapers, magazines and personal photographs. The District Court, applying the Turner standard, granted summary judgment to the defendants, and although the Third Circuit reversed, the Supreme Court sided with the District Court.33 In particular, a plurality of the Court found “a valid, rational connection” between the challenged policy and the “governmental interest put forward to justify it.”34 According to the defendants, the restriction was necessary to “motivate better behavior on the part of particularly difficult prisoners” in the LTSU.35

In finding for the defendants, the Supreme Court plurality relied on the assertion of the prison’s deputy superintendent that incentives for good behavior in the control unit were highly limited, and that “the Policy serves to encourage ... progress and discourage backsliding.”36 Banks contested the motion for summary judgment on the grounds that “contact with the [outside] world generally favors rehabilitation.”37 For its part, the Third Circuit found insufficient evidence that the ban on publications and personal photos “was implemented in a way that could modify behavior” or to suggest that the defendants’ “deprivation theory of behavior modification had any basis in real human psychology, or had proven effective with LTSU inmates.”38 And in dissent, Justice Stevens closely scrutinized the government’s justification in light of the realities in the control unit, and made a compelling case on the facts that summary judgment was inappropriate.39

Because the case involved a grant of summary judgment, the arguments supporting the prisoners’ position offered by the Third Circuit and in Justice Stevens’ dissent have particular significance. Ordinarily, a grant of summary judgment is appropriate only when, taking the evidence in the light most favorable to the non-moving party, no triable issue of material fact exists.40 In cases governed by Turner, summary judgment should therefore be denied if there is sufficient evidence on which a jury could find that no “valid, rational connection” existed between the challenged policy and the proffered justifications for it.

Arguably, the Court of Appeals in Banks offered reason enough to deny the motion: given the lack of supporting evidence for the behavior modification theory, a reasonable jury could well fail to find a legitimate penological justification for the challenged policy. Yet Justice Breyer concluded otherwise. Writing for a plurality of the Court, he found that the Third Circuit placed too high a burden on the defendants, according “too little deference” to the judgment of prison officials about such matters.41 This notion may at first seem perplexing, since the summary judgment standard requires courts to “draw all justifiable inferences in favor of the nonmoving party.”42 But when the case involves prisoners, Justice Breyer held, “we must distinguish between evidence of disputed facts and disputed matters of professional judgment.”43 And “[i]n response to the latter, our inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage.”44 In other words, in cases brought by prisoners, even before any discovery has been allowed, the plaintiff must overcome the strong presumption that already exists in favor of the defendants’ view of what is necessary to run the prisons, and convince the court not just that a reasonable jury could find in the plaintiff’s favor but that it will necessarily do so.

The Banks decision turns the summary judgment standard on its head, clearing the way for defendants to prevail, even in the face of strong opposing arguments, so long as they can provide even a colorable argument for their position. As Justice Ginsburg observes in her Banks dissent, the defendants’ showing in this case—based purely on the defendants’ own conclusory statements—“is slim, the kind that could be made to justify virtually any prison regulation that does not involve physical abuse.”45 Yet the point of the summary judgment standard, she notes, is to determine whether defendants are “entitled to a judgment as a matter of law.”46 This conclusion ought only to be reached without trial in cases where no reasonable jury could find otherwise. Yet based on the standard as reframed by Justice Breyer, “[i]t suffices for [prison officials] to say, in our professional judgment the restriction is warranted.”47

Third and finally, the imperative of judicial deference operates in prisoners’ rights cases to recast relevant facts in ways that deny or disregard the real-life experiences of prisoners, thereby undermining the force of the constitutional claim at issue. Some examples: In Rhodes v. Chapman,48 the Supreme Court rejected a per se challenge to the practice of double-celling under the Eighth Amendment49 on the ground that it did not “create other conditions intolerable for prison confinement.”50 The Court reached this conclusion although the great weight of the evidence indicated 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”—and that, after accounting for the bed alone, even “without making allowance for any other furniture in the room” (e.g., toilet, sink, locker, shelves, etc.), the remaining square footage per person was approximately “20-24 square feet, an area about the size of a typical door.”51

In Whitley v. Albers, the Supreme Court upheld a directed verdict for the defendants on a claim of unconstitutional use of force brought by a prisoner shot by an officer in the course of a prison disturbance.52 Writing for the Court, Justice O’Connor emphasized that at the time of the shooting a riot was in progress, “a guard was still held hostage,” and “[t]he situation remained dangerous and volatile.”53 Yet as Justice Marshall noted in dissent, in a case appealing a directed verdict for the defendants, the “facts must be viewed in the light most favorable” to the plaintiff, and in this case the plaintiff had presented “substantial testimony” at trial to show that by the time the officer shot him, “the disturbance had subsided,” that “only one prisoner”—a man named Klenk—”remained in any way disruptive,” and that the guard who had been taken hostage in the melee “was not, in fact, in danger,” but “had been put into a cell by several inmates to prevent Klenk from harming him.”54

In Overton v. Bazzetta,55 the Court upheld on Turner grounds a total ban on visitors for Michigan prisoners who had two or more substance abuse infractions. Pursuant to Turner, the Court conceded that, “[w]ere it shown that no alternative means of communication existed, ... it would be some evidence that the regulations were unreasonable,” but then went on to find that “communicat[ions] with persons outside the prison by letter and telephone” were sufficient alternatives.56 The Court thus waved away the seemingly valid concerns that such alternatives are “inadequate for illiterate inmates and for communications with young children” and that “phone calls are brief and expensive,” on the telling formalistic grounds that “[a]lternatives to visits need not be ideal,” but “need only be available.”57

And perhaps most striking of all, in Lewis v. Casey,58 Justice Scalia maintained that prisoners’ right of access to the courts—the right, after Bounds v. Smith,59 to “adequate law libraries or adequate assistance from persons trained in the law”60—entails only the right to “bring to court a grievance that the inmate wished to present,”61 and not to litigate effectively once in court.”62 Yet as anyone familiar with the legal process is well aware, and as the Bounds Court emphasized, “[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, [etc.].”63 Moreover, the Bounds Court noted that the state’s response to a pro se pleading “will undoubtedly contain seemingly authoritative citations. Without a library, an inmate will be unable to rebut the State’s argument.”64 Without legal assistance through the life cycle of a claim, in other words, it is hard to see how a prisoner’s right of access to the courts is to have any meaning.

Read separately, there may well be an explanation for the Supreme Court’s position in each of these cases. A per se ban on double-celling may have been impossible for the states to implement, making such a holding an expenditure of the Court’s political capital to no purpose. Finding for the plaintiff in Albers might perhaps have chilled the ability of prison officials to respond adequately to disturbances in their facilities. Striking down the ban on visitation for Michigan prisoners with multiple substance abuse violations may have deprived the prison of an available incentive for prisoners to avoid drugs and alcohol while in custody.65 And making the right of court access meaningful over the life cycle of a legal claim would surely tax prison systems. Yet in none of these cases is the Court forthright about these possible implications, which might have allowed explicit consideration of the legitimacy of allowing such concerns to dictate constitutional outcomes. Instead, in its quest to reach the desired result, the Court simply pretends that the facts, as framed by the Court, require the stipulated outcome, reasoning in ways that not only favor the defendants but also seem willfully to deny the real-life experience of prisoners—even when the nature of that experience is the gravamen of the legal complaint.

In sum, far from achieving a balance between appropriate deference and appropriate constitutional enforcement, the Court’s prisoners’ rights case law seems instead to be a jurisprudence of evasion, justified by talismanic reference to the need to defer to prison officials. The overall impression is of an area of constitutional law that preserves the form in each case yet lacks what is arguably the heart of the enterprise: a good faith assessment of each claim in light of applicable constitutional principles, fairly and consistently applied. At times, the Court’s reasoning in these cases verges on casuistry—or outcome-oriented results—which should trouble anyone committed to the rule of law.

II. Limiting the Creative Use of Deference: The Court and the PLRA

In the Supreme Court’s prisoners’ rights cases, deference is routinely deployed—usually explicitly, although some-times implicitly66— to justify outcomes benefiting defendants at the expense of plaintiffs. Yet in a related body of doctrine, those cases involving the PLRA, one finds the Court eschewing the deferential strategies that it freely employs in other prisoners’ rights cases.

This is not to say that such deferential strategies are not present in PLRA cases. One obvious example can be found in Woodford v. Ngo,67 in which the Court held that failure to properly exhaust a prison’s grievance procedure, whatever the circumstances, constitutes a procedural default.68 After Woodford, prisoners must “complete the [grievance] process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.”69 Ngo argued that this holding would only incentivize “prison administrators to devise procedural requirements ... designed to trap unwary prisoners and thus to defeat their claims,” but the Supreme Court brushed this concern aside, asserting instead that prison officials “concerned about maintaining order ... have a reason for creating and retaining grievance systems that provide ... a meaningful opportunity for prisoners to raise meritorious grievances.”70 For those familiar with the actual dynamics of carceral institutions, the Court’s reasoning seemed very much at odds with the realities of prison life.

In other of the Court’s PLRA-related cases, however, there is a refusal to endorse at least some of the deferential strategies that the Court has readily adopted in its prisoners’ rights jurisprudence. In Jones v. Bock,71 for example, the Court rebuffed efforts by the Sixth Circuit to impose additional procedural burdens on prisoners bringing claims.72 Inspired by the PLRA’s exhaustion requirement,73 the Sixth Circuit had adopted a number of procedural rules, not present in the text of the statute, intended “to implement this exhaustion requirement and facilitate early judicial screening” of prisoner complaints.74
As the Jones Court noted, these new rules had no basis in either the PLRA—which simply states that prisoners may not bring suit in federal court “until such administrative remedies as are available are exhausted”75—or in the Federal Rules of Civil Procedure.76

As has been seen, the Supreme Court’s prisoners’ rights cases feature other examples of well-established procedural rules being rewritten to bolster the position of prison officials at the expense of prisoners. In Jones, however, the Court took a dim view of such an undertaking. The Court credited the Sixth Circuit with good faith in the matter, assuming its motive in imposing the restrictive rules was only to ensure that “the ‘new regime’ mandated by the PLRA for prisoner complaints ... function[ed] effectively.”77 Yet it stated clearly that “courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns.”78 Indeed, the Court admonished the Sixth Circuit that doing so would exceed the authority of the courts in the constitutional scheme.79 Nor, the Jones Court emphasized, should the federal courts read into a statute a congressional intent to reframe a standard judicial practice; if Congress had “meant to depart from the norm,” the statute would offer some indication to that effect.80

The Jones Court thus took the Sixth Circuit somewhat to task for doing what the Court itself did in North Carolina Prisoners’ Union and in Banks. Admittedly, there are differences between the cases. Jones involved statutory interpretation, and the statute itself provided the Court with a firm baseline from which to assess the Sixth Circuit’s creative rule-making. By contrast, North Carolina Prisoners’ Union and Banks involved constitutional claims, as to which the Supreme Court sets its own baseline. In the statutory context it is up to Congress to weigh the various policy concerns, whereas in the universe of constitutional claims, that burden falls to the Court. But this distinction may obscure as much as it reveals. For one thing, in Banks the Court rewrote the Federal Rules as freely as did the Sixth Circuit in Jones; after Banks, the summary judgment rules for prisoner cases are different, and more defendant-friendly, than in other cases. If this is not “depart[ing] from the usual practice under the Federal Rules on the basis of perceived policy concerns,”81 it is hard to know what would be. As for the (re)description of the district court’s role in evaluating evidence in prison cases in North Carolina Prisoners’ Union, Justice Rehnquist did not even try to ground the change in any constitutional principles.

And Jones is not the only PLRA case in which the Court distances itself from the deferential approach it employs elsewhere in its prison law cases. The Supreme Court’s PLRA jurisprudence also betrays some inclination to reject a second form of deference found throughout its prisoners’ rights cases: reframing the facts in ways sympathetic to defendant prison officials. Certainly, the PLRA cases still show signs of this strategy, as the above discussion of Woodford suggests. But in Brown v. Plata82—the most consequential prison case in almost two decades—the Court declined the invitation issued in Justice Alito’s dissent to interpret the facts in a way that, although defendant-friendly, was stubbornly at odds with the reality of the case. In doing so, the Court showed itself able to acknowledge strategic behavior on the part of prison officials and to credit the reality of prison life as experienced by prisoners—capacities rarely on view in the Court’s prisoners’ rights cases.

The legal question presented in Plata was whether a three-judge panel, formed pursuant to 18 U.S.C. § 3626, exceeded its authority when it ordered California to reduce its prison population to 137.5% of the rated capacity of its facilities.83 Writing for the Court, Justice Kennedy recognized that, although the order was “of unprecedented sweep and extent,” the “medical and mental health care provided by California’s prisons” had “for years ... fallen short of minimal constitutional requirements,” and that “[e]fforts to remedy the violation ha[d] been frustrated by severe overcrowding....”84

The majority opinion recited 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”; that one such prisoner, 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”;85 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.”86 Justice Kennedy then, as Linda Greenhouse aptly put it in a New York Times opinion piece, “plowed methodically through every section of the [PLRA]” and agreed with the panel’s conclusion as to each.87 Acknowledging the deference it owed to the panel’s findings of fact, the Court credited the panel’s account of the evidence and echoed the realism that attended the panel’s deliberations as well as its reluctance to allow the defendants’ implausible assertions to derail statutorily authorized remedial efforts.

Ordinarily there would be nothing surprising here; appellate courts undertake this sort of review all the time. But for a prison law case, Plata’s majority opinion was notable for what it did not do, i.e., avail itself of any of the deferential moves that more typically inform the Court’s rulings in this area. It did not, for example, rewrite the rules of appellate review, but forthrightly acknowledged that “[w]ith respect to the three-judge court’s factual findings, this Court’s review is necessarily deferential.”88 In assessing the panel’s conclusion that overcrowding was the “primary cause” of the violation—as it needed to be if the panel’s order was to satisfy § 3626—the Court even passed up a chance to justify de novo review. Although it noted that the “issue of primary cause presents a mixed question of law and fact,” it found that, in this case, “the mix weighs heavily on the fact side.”89

It was left to Justice Alito in his dissent to advocate the recasting of rules governing appellate review. Although it is standard practice for trial courts to assess expert testimony as part of its fact-finding role, Justice Alito insisted that, given the issue presented, the weighing of expert evidence in this case was of a different order. As he put it, when a trial court considers expert testimony “on broad empirical questions such as the efficacy of preventing crime through the incapacitation of convicted criminals,” its “choice is very different from a classic finding of fact and is not entitled to the same degree of deference on appeal.”90 Justice Alito offered no justification for this departure from the standard rules of appellate review beyond this recitation of the substantive issue; indeed, he seemed not even to realize such a justification was warranted. Perhaps more revealing still, Justice Alito’s dissent made clear that no amount of evidence could convince him that the panel had satisfied its obligation under § 3626(a)(1) to “give substantial weight to any adverse impact on public safety.”91

Justice Kennedy’s opinion in Plata is also notable for its eschewal of the third form deference can take in prison law cases, a stance evident in its willingness to take the record at face value and accept the facts as given without seeking to reframe them in defendant-friendly ways. Again, it was left to Justice Alito in dissent to present the facts in a manner inconsistent with the record, which he did most obviously in his discussion of the PLRA’s narrow tailoring requirement. The three-judge panel had found that without reducing prison overcrowding, the state would be unable to ensure the constitutionality of its medical and mental health care. It based this finding on California’s many years of noncompliance with seventy-plus judicial orders issued in the two cases that resulted in the Plata ruling.92 As the panel explained, it was not that the defendants were unaware of what reforms were needed, but that the state had plainly demonstrated over two decades its inability to effect them.93

Justice Alito’s discussion brushed this history aside. Instead, it focused narrowly on what it would take to remedy the “deficiencies” in the prison’s medical and mental health care delivery systems,94 and reads as if its proposed solutions had simply escaped judicial notice. According to Justice Alito:

Many of the problems [identified by the Court] could be addressed without releasing prisoners and without incurring the costs associated with a large-scale prison construction program. Sanitary procedures could be improved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the number of medical and other staff positions could be increased.
Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifications of medical personnel cannot be improved by any means short of a massive prisoner release.95

Justice Alito thus concluded that “[w]ithout specific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better training and monitoring of performance.”96 In the context of this case, however, Justice Alito’s reasoning is wholly at odds with the facts. Taken together, the histories of Plata and Coleman (the two consolidated cases at issue) featured over two decades of the state’s inability to implement the particular changes—including those listed by Justice Alito—that all parties agreed were necessary to ensure constitutional levels of medical and mental health care. The panel issued its order after years of working with the state to try to bring about constitutional compliance, finally concluding that no progress could be expected absent a reduction in overcrowding. Yet Justice Alito wrote as if the panel’s order was its first resort, and as if the decades of failed efforts at compliance had never occurred.

Thus, in Plata, at least two forms of deference typical of prisoners’ rights cases were on view in Justice Alito’s dissent while the majority eschewed them both in favor of a systematic and even-handed analysis of the questions presented. Perhaps too much should not be made of this departure from the Court’s usual treatment of prison law issues; the case was so massive and the conditions so extreme that there is unlikely ever to be another like it. Still, it seems noteworthy that the two cases in which the Court most obviously abstained from using the forms of deference it employs elsewhere in the prison law context are PLRA cases.

With the passage of the PLRA, Congress enacted a set of rules to govern prisoners’ rights cases that, as with the standards established in Turner, Farmer and Whitley, directly manifest the imperative of judicial deference to prison officials. Some of these same provisions, moreover, impose additional procedural burdens on prisoners bringing § 1983 actions, creating exceptions to established rules for the prisoners’ rights context much like the Court did in North Carolina Prisoners’ Union and Banks. It may only be a coincidence that Jones and Plata are both PLRA cases. But it is also possible that even a Court ordinarily inclined to adopt deliberative strategies sympathetic to defendant prison officials may hesitate to do so in cases where the applicable law already features both highly deferential substantive standards and a host of procedural rules rewritten to be more onerous for prisoners than for other § 1983 plaintiffs. Perhaps even in the prison law context there is an implicit upper limit to how much deference to defendant prison officials the Court is willing to tolerate.

Of course, any such account must allow for possible variation among the Justices. Justice Scalia, for one, implies in his Plata dissent that at least in some cases there is no limit to his determination to find a way to rule against prisoners. Not one to mince words, Justice Scalia dismissed the panel’s proceedings as “a judicial travesty” and its order as “absurd.”97 Lest one think his assessment is based on considered analysis of the facts in light of the relevant PLRA provisions, Justice Scalia made clear that, even had the order satisfied the PLRA’s requirements to the letter, it would not have been enough for him. As he put it, “[o]ne would think that, before allowing the decree of a federal district court to release 46,000 convicted felons”—a misstatement of the order,98 it bears noting—“this Court would bend every effort to read the law in such a way as to avoid that outrageous result.”99

This language reinforces the strong impression that a canvassing of the Court’s prison law cases already creates—that rather than applying the relevant law in good faith to the facts of cases involving prisoners, at least some Justices (and, by extension, some appellate and district court judges) will “bend every effort to read the law” to favor defendant prison officials at the expense of prisoner plaintiffs.

III. Toward a Principled Theory of Deference

Of course, the Supreme Court does not always find for the defendants in prisoners’ rights cases.100 Nor is the Court’s invocation of deference in prison law cases always misplaced.101 The problem in prisoners’ rights cases, and in prison law cases more generally, is not the use of deference per se but rather the lack of any guiding principles for its application.

If the Court’s prison law jurisprudence is to be legitimate, a theory of judicial deference for the prison law context is needed in order to address the questions of when deference is justified, what forms it may legitimately take, which aspects of a court’s deliberations it may appropriately influence and the proper limits on its use. The examples cited in this article suggest that a focus on prison law cases would be a worthwhile place to begin crafting such a theory. Relevant questions would include whether deference in practice takes any forms beyond those identified herein (and indeed whether what has been described as forms of deference are accurately characterized as such); whether these cases suggest any patterns as to when and in what forms deference is invoked; and whether those patterns reveal any principled bases for its invocation.

At the same time, efforts to develop a principled account of judicial deference in the prison law context should also reach beyond the cases, to consider at a more abstract level when, if ever, it is appropriate for courts to make the kinds of moves routinely seen in the Supreme Court’s prisoners’ rights jurisprudence. Doing so will require grappling directly with the various institutional concerns that might explain the Court’s determination to defer in this context. These concerns have been staples of the federal courts’ prison law cases for over a century. Most prominent among them is the notion of relative institutional competency; i.e., the view that prison officials and not the courts have the expertise necessary to deal with the “complex and intractable” problems of American prisons.102
But they also include more general concerns with the demands of federalism and separation of powers, as well as with the possibility of inviting a deluge of frivolous prisoner complaints.

The legal field termed “prison law” in this article is actually an amalgam of several areas of law, chief among them administrative law and constitutional law. Issues of judicial deference—or “levels of scrutiny” in the constitutional context—are central to both these areas, and any inquiry into appropriate deference for the prison law context may thus also need to consider, and likely wrestle with, the tensions in both administrative and constitutional law between judicial power on the one hand and executive and legislative power on the other.

Of the two, administrative law in general seems particularly relevant to an inquiry into appropriate limits on deference. Prisons are run by government agencies, albeit agencies with special status in the administrative law universe. Much of the doctrine in the administrative law arena is concerned with the appropriate scope of judicial deference to agency determinations. A set of questions thus naturally arises: In what ways does or should deference in the prison law context differ from deference granted to other administrative agencies? Ought prisons to be treated the same as other agencies? To what extent should the answer depend on the nature of the challenged regulation or practice?
On the process by which it was established?103 As for constitutional law, considering the ways scholars and the Justices themselves understand and justify the various levels of scrutiny courts bring to bear on constitutional claims may prove useful to the crafting of a principled approach to deference in the prison context.

This way of approaching the issue assumes that deference in the prison context may be understood at least to some extent as a species of a general, cross-doctrinal legal concept.
To some readers, however, this notion may seem to give the Court too much credit. Given its minimal efforts to justify the extent to which it defers to prison officials, and given that at least two forms that deference takes in this context—the re-fashioning of procedural rules to disadvantage prisoners, and a persistent readiness to interpret the facts to favor defendants—seem at least on the surface of questionable legitimacy, and given the Court’s generally evident determination to find ways to allow defendant prison officials to prevail, one might instead regard the Court’s repeated invocation of deference in its prison law cases as just a makeweight: a convenient, authoritative-seeming basis on which to ensure that prisoners almost always lose. Seen in this light, it is misguided to think that the Court’s use of “deference” in other cases will illuminate the use of this practice in the prison context; although the term is found elsewhere, in practice there is no meaningful commonality.

There may be something to this skeptical view. Certainly, on the surface, there seems scant resemblance between, for example, the kinds of burdens the Supreme Court imposes on administrative agencies before it will defer to their expertise in the crafting of regulations pursuant to their statutory authority and the broad grants of discretion to prison officials embodied in the Court’s prisoners’ rights doctrine. It is, moreover, hard to square the Court’s heightened scrutiny in cases involving fundamental constitutional rights in general with the deferential review accorded policies and practices burdening the fundamental constitutional rights of prisoners.

Yet the fact that a close examination of forms of judicial deference is likely to reveal the prison law context as an outlier, and even as an area of systematic judicial bias against a particular plaintiff class, does not diminish the potential value of such an investigation. To the contrary, exposing dissimilarity in the way judicial deference is used in other doctrinal contexts as compared with its use in prison law cases would only reinforce the need for a principled account of deference in the prison context. Such a comparative exercise, moreover, is sure to provide potentially useful guidance for the crafting of such an account, drawn from instances in which the Court more aggressively exercises its obligations of constitutional enforcement and judicial review.

At the same time, efforts to make sense of the use of judicial deference in the prison context may also yield insights of broader doctrinal relevance. For example, exploring the possibility that the Court’s prison law jurisprudence is informed by an implicit animus toward the affected class will invite engagement with the more overtly normative issues raised in Carolene Products’ famous footnote four,104 including whether and to what extent the political status of plaintiffs in general may justifiably influence judicial deliberations. Further, examining forms of judicial deference in the prison context may offer a typology with general application.

All told, given the complexity of our nation’s carceral system, deference to prison officials may well be more readily justified than judicial deference in other contexts. But even so there remains an urgent need for clearly articulated principles for the deployment of deference. Absent such principles, we are left with a body of law that seems very much stacked against a group of people who are sorely in need of fair treatment, yet who find even their most meritorious claims regarding violations of their constitutional rights getting nowhere, due at least in part to judicial deference to defendant prison officials. A system like this cannot be regarded as legitimate by those it most affects—nor, arguably, by anyone who believes in the precept of “equal justice under law.”105


1 I thank Rachel Barkow, Jody Freeman, Giovanna Shay and especially Dick Fallon for helpful comments and conversation, and Erin Earl for outstanding research assistance.

2 482 U.S. 78 (1987).

3 Id. at 89.

4 Id.

5 Id. at 90.

6 Id.

7 Id.

8 Id. at 89-90.

9 Id. at 90; Pell v. Procunier, 417 U.S. 817, 827 (1974).

10 Turner, 482 U.S. at 90.

11 Id. at 91.

12 475 U.S. 312 (1986).

13 E.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Wilson v. Seiter, 501 U.S. 294, 303 (1991).

14 Whitley, 475 U.S. at 320-21.

15 511 U.S. 825 (1994).

16 See id. at 838.

17 501 U.S. 294 (1991).

18 Id. at 300.

19 See Sharon Dolovich, “Cruelty, Prison Conditions and the Eighth Amendment,” 84 N.Y.U.L.Rev. 881, 895-907 (2009) (arguing this view in detail).

20 433 U.S. 119 (1977).

21 See id. at 122-23.

22 N.C. Prisoners’ Labor Union, Inc. v. Jones, 409 F. Supp. 937, 942 (E.D.N.C. 1976).

23 Id. at 943.

24 Id. at 944.

25 Id.

26 Id.

27 Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 121 (1977).

28 Id. at 126.

29 Id. at 127-28 (emphasis added).

30 See also id. at 132.

31 N.C. Prisoners’ Labor Union, 409 F. Supp. at 943.

32 548 U.S. 521 (2006).

33 Id. at 527-28, 536 (plurality opinion).

34 Id. at 529, 531.

35 Id. at 530.

36 Id. at 531.

37 Id.

38 Id. at 535.

39 Id. at 543-52 (Stevens, J., dissenting).

40 Fed. R. Civ. P. 56(a).

41 Banks, 548 U.S. at 535 (plurality opinion).

42 Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).

43 Banks, 548 U.S. at 530 (plurality opinion) (emphasis added).

44 Id.

45 Id. at 554 (Ginsburg, J., dissenting).

46 Id. at 556 (emphasis in original).

47 Id. As Justice Ginsburg put it, “the plurality effectively tells prison officials they will succeed in cases of this order, and swiftly, while barely trying.”

48 452 U.S. 337 (1981).

49 Id. at 346, 348.

50 Id. at 348.

51 Id. at 371 & n.3 (Marshall, J., dissenting).

52 See 475 U.S. 312, 317-18 (1986).

53 Id. at 322-23.

54 Id. at 330 (Marshall, J., dissenting).

55 539 U.S. 126 (2003).

56 Id. at 135.

57 Id.

58 518 U.S. 343 (1996).

59 430 U.S. 817 (1977).

60 Id. at 828.

61 Casey, 518 U.S. at 354 (citation omitted).

62 Id. at 354.

63 Bounds, 430 U.S. at 825.

64 Id. at 826.

65 Of course, depriving prisoners of outside visits, one of the few bright spots in an otherwise dispiriting existence, may well simply push those prisoners inclined to drugs or alcohol to use those substances as a way to dull their pain.

66 In almost all the cases discussed above, the Court justifies the moves it makes by explicit reference to the need to defer. In cases where it does not, the imperative to defer is generally already embodied in the substantive standards being applied—as in Overton v. Bazzetta, 539 U.S. 126 (2003), which applied the Turner standard to regulations restricting plaintiffs’ visiting privileges. The one exception is Farmer v. Brennan, 511 U.S. 825 (1994), which does not explicitly invoke the need to defer in crafting the standards for Eighth Amendment prison conditions claims. In that case, however, it is hard to understand either the Court’s holding or the justifications offered for it as anything other than the determination to create a zone for official action in which prison officials can exercise discretion without fear of constitutional liability.

67 548 U.S. 81 (2006).

68 Id. at 87.

69 Id. at 88.

70 Id. at 102.

71 549 U.S. 199 (2006).

72 Id. at 202-03.

73 42 U.S.C. § 1997e(a) (2006).

74 Jones, 549 U.S. at 202-03.

75 42 U.S.C. § 1997e(a).

76 See Jones, 549 U.S. at 212.

77 Id. at 213.

78 Id. at 212.

79 Id. at 216.

80 Id. at 221.

81 Id. at 212.

82 131 S.Ct. 1910 (2011).

83 Id. at 1922-23.

84 Id. at 1923.

85 Id. at 1924.

86 Id. at 1925.

87 Linda Greenhouse, “A Voice from the Past,” N.Y. Times Opinionator (June 1, 2011 9:00 PM),

88 Plata, 131 S.Ct. at 1932.

89 Id. (Rehnquist, C.J., concurring in the judgment) (internal quotation marks omitted).

90 Id. at 1966 (Alito, J., dissenting).

91 See id. at 1965-67.

92 Id. at 1930-31.

93 See Coleman v. Schwarzenegger, Case No. CIV S-90-0520 LKK JFM P, at 102-14 (E.D. Cal. Aug. 8, 2009).

94 Plata, 131 S.Ct. at 1963 (Alito, J., dissenting).

95 Id. at 1964.

96 Id.

97 Plata, 131 S.Ct. at 1951 (Scalia, J. dissenting).

98 Id. at 1950. The panel’s order required the state to reduce the population of its prisons to 137.5 percent of rated capacity, but it made clear that it was up to the state to decide how to achieve that goal; if it could build more prisons, for example, the state could close in on the required capacity without releasing prisoners. See Coleman v. Schwarzenegger, Case No. CIV S-90-0520 LKK JFM P, at 32-33 (E.D. Cal. Aug. 8, 2009). As it happens, the state has opted for a different strategy, one that will reduce the prisoner population without either mass releases or building more prisons: what it calls “realignment,” which entails requiring county jails to shoulder more of the burden for low-level offenders and parole violators.

99 Plata, 131 S.Ct. at 1950 (Scalia, J., dissenting).

100 See, e.g., Cleavinger v. Saxner, 474 U.S. 193 (1985) (rejecting hearing officers’ claim to absolute immunity for actions taken in conjunction with prison disciplinary hearings); Turner v. Safley, 482 U.S. 78, 98-100 (1987) (striking down a ban on marriage without the superintendent’s permission after finding proffered justifications for the ban illogical).

101 See, e.g., Lewis v. Casey, 518 U.S. 343, 362-63 (1996) (chastising the district court for imposing a minutely detailed order for the revamping of law libraries in Arizona prisons, which had been crafted without consulting the state).

102 Procunier v. Martinez, 416 U.S. 396, 404-405 (1974).

103 For more on this issue, see Giovanna Shay, “Ad Law Incarcerated,” 14 Berkeley J. Crim. L. 329 (2009).

104 “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” United States v. Carolene Products Company, 304 U.S. 144, 152 n.4 (1938) (emphasis added).

105 The optimistic phrase engraved on the front of the U.S. Supreme Court building in Washington, D.C.

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